As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUIFAX INC.
(Exact name of Registrant as specified in its charter)
Georgia 57-0401110
(State or other jurisdiction of (I.R.S. Employer
organization) Identification Number)
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
- ---------------------------------------------------------------------------
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Bruce S. Richards, Esq.
Corporate Vice President and General Counsel
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Larry D. Ledbetter, Esq.
Kilpatrick Stockton LLP
1100 Peachtree Street, N.W.
Atlanta, Georgia 30309
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement
becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. / /
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act
registration statement number of 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Title of each class of Amount to Proposed Proposed Amount of
securities to be registered be registered maximum maximum registration fee
offering price aggregate
per unit offering price(1)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities <F2>, <F6> <F6> $400,000,000 $118,000<F7>
Preferred Stock <F3>, Depositary
Shares,
Common Stock <F4>, Common Stock Purchase
Rights <F5> and Warrants
_______________________________
<FN>
<F1> Estimated solely for the purpose of calculating the
registration fee. The aggregate initial public offering
price of the securities registered hereby will not exceed
$400,000,000 in U.S. dollars or the U.S. dollar equivalent
in foreign currency or currency units.
<F2> May be issued at an original issue discount. Includes Debt
Securities that may be issuable from time to time upon
exercise of Warrants.
<F3> Includes such presently indeterminable number of shares of
Preferred Stock as may be issuable from time to time upon
conversion of Debt Securities or exercise of Warrants and
includes shares of Preferred Stock with respect to which
Depositary Shares may be issued.
<F4> Includes such presently indeterminable number of shares of
Common Stock as may be issuable from time to time upon
conversion of Debt Securities or Preferred Stock or upon
exercise of Warrants.
<F5> Each share of Common Stock includes an attached Common Stock
purchase right. No separate consideration would be paid for
such rights. Their value, if any, will be reflected in the
price of any shares of Common Stock offered.
<F6> The amount to be registered and the proposed maximum
offering price per unit have been omitted pursuant to Rule
457(o) under the Securities Act of 1933.
<F7> The registration fee has been calculated pursuant to Rule
457(o) under the Securities Act of 1933.
</FN>
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.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted
prior to the time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED _________, 1998
PROSPECTUS
$400,000,000
EQUIFAX INC.
SECURITIES
Equifax Inc., a Georgia corporation (the "Company"), may
offer from time to time (i) unsecured debt securities ("Debt
Securities") consisting of debentures, notes and/or other
unsecured evidences of indebtedness in one or more series. (ii)
shares of preferred stock, par value $0.01 per share ("Preferred
Stock"), in one or more series, (iii) shares of Preferred Stock
represented by depositary shares ("Depositary Shares"), (iv)
shares of common stock, $1.25 par value per share, with attached
rights to purchase shares of such common stock ("Common
Stock") or (v) warrants to purchase Debt Securities, Preferred
Stock, Depositary Shares or Common Stock ("Warrants", which
together with Debt Securities, Preferred Stock, Depositary Shares
and Common Stock are referred to as "Securities"), or any
combination of the foregoing, at an aggregate initial public
offering price not to exceed $400,000,000 (or the equivalent
thereof if Debt Securities are denominated in one or more foreign
currencies or foreign currency units), at prices and on terms to
be determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement (as supplemented by any
applicable pricing supplement relating thereto, a "Prospectus
Supplement"), together with the terms of the offering of the
Securities, the initial public offering price and the net
proceeds to the Company from the sale thereof. The Prospectus
Supplement will set forth, among other matters, the following
with respect to the particular Securities: (i) in the case of
Debt Securities, the specific designation, aggregate principal
amount, authorized denominations, maturity, rate or method of
calculation of interest and dates for payment thereof, any
conversion, redemption, prepayment or sinking fund provisions,
and the currency, currencies or currency units in which
principal, premium, if any, or interest, if any, is payable, (ii)
in the case of Preferred Stock, the designation, number of
shares, liquidation preference, initial public offering price,
dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions and any voting
and conversion or exchange rights, (iii) in the case of
Depositary Shares, the aggregate number of Depositary Shares
offered, the description of Preferred Stock represented by
Depositary Shares and the fractional shares of such Preferred
Stock represented by each such Depositary Share, (iv) in the case
of Common Stock, the number of shares of Common Stock, and (v) in
the case of Warrants, the description of the securities subject
to the Warrants, the number of Warrants and the exercise price
thereof.
=====================
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
=======================
The Company may sell Securities directly to purchasers or
through agents designated from time to time by the Company or to
or through underwriters or a group of underwriters which may be
managed by one or more underwriters. If any agents of the Company
or any underwriters are involved in the sale of Securities in
respect of which this Prospectus is being delivered, then the
names of such agents or underwriters and any applicable
commission or discount will be set forth in the applicable
Prospectus Supplement. The net proceeds to the Company from the
sale of Securities will be the initial public offering price of
such Securities less such discount, in the case of an offering
through an underwriter, or the purchase price of such Securities
less such commission, in the case of an offering through an
agent, and less, in each case, other expenses of the Company
associated with the issuance and distribution of such Securities.
-----------------------------
The date of this Prospectus is _____________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). The Company has filed with the
Commission a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities
offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all information set
forth in the Registration Statement and reference is hereby made
to the Registration Statement and the exhibits thereto for
further information with respect to the Company and the
Securities offered hereby. Such reports, proxy statements,
Registration Statement and exhibits and other information omitted
from this Prospectus can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at its
Northeast Regional Office located at 7 World Trade Center, Suite
1300, New York, New York 10048 and Midwest Regional Office
located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549.
Certain documents, including annual and quarterly reports and
proxy statements, filed by the Company with the Commission on and
after January 1, 1995 have been or will be electronically filed.
The Commission maintains a Web site that contains reports, proxy
and information statements and other information regarding
registrants that file electronically with the Commission at
(http://www.sec.gov). Certain of the Company's securities are
listed on the New York Stock Exchange and such reports, proxy
statements and other information may also be inspected at the
offices of the New York Stock Exchange, Inc., 70 Broad Street,
New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of the Company on Form 10-K for the year
ended December 31, 1996, the Quarterly Reports of the Company on
Form 10-Q for the quarters ended March 31, 1997, June 30, 1997
and September 30, 1997, and the Current Reports of the Company on
Form 8-K dated July 17, 1997, July 31, 1997 and August 7, 1997
and the registration statements of the Company on Form 10, dated
December 31, 1964, and on Form 8-A, filed on November 2, 1995 are
incorporated by reference into this Prospectus. All documents filed
by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities contemplated hereby
shall be deemed to be incorporated by reference into this Prospectus
and to be made a part hereof from the respective dates of filing of
such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a
statement contained herein, in the accompanying Prospectus
2
<PAGE>
Supplement or in any subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or
this Prospectus.
Copies of the above documents (other than exhibits to such
documents unless such exhibits are specifically incorporated by
reference into such documents) may be obtained upon written or
oral request without charge from the Company, 1600 Peachtree
Street, N.W. Atlanta, Georgia 30309 (telephone number (404)
885-8000), Attention: Bruce S. Richards, Esq., Corporate Vice
President and General Counsel.
THE COMPANY
The Company is a global leader in providing financial
information and transaction processing solutions. The Company's
global operations include consumer and commercial credit
information services, payment services, software, modeling,
analytics, consulting and direct-to-consumer services. Through
an array of knowledge-based solutions, the Company facilitates
the transaction process for its customers by providing services
and systems that help in making credit decisions, authorizing and
processing credit card and check transactions, managing
receivables, predicting consumer behavior, marketing products and
managing risk. The Company serves a broad range of businesses,
including banking, finance, retail, credit card,
telecommunications/utilities and health care industries.
Founded in 1899 as a local credit bureau in Atlanta,
Georgia, and incorporated under the laws of Georgia in 1913, the
Company today operates as a diverse multinational corporation
with operations in 17 countries and sales in over 40 countries.
The address of its principal executive offices is 1600 Peachtree
Street, N.W., Atlanta, Georgia 30309, and the telephone number of
its principal executive offices is (404) 885-8000.
The Company regularly considers acquisition opportunities as
well as other forms of business combinations and divestitures.
Historically, the Company has been involved in numerous
transactions of varying magnitudes in which the consideration
included cash or securities (including common stock) or both. The
Company continues to evaluate and pursue transaction
opportunities as they arise. No assurance can be given with
respect to the timing, likelihood or the financial or business
effect of any possible transaction.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement
for the specific offering of Securities, the net proceeds
received by the Company from the sale of the Securities will be
utilized by the Company as required from time to time for working
capital and expansion of the businesses of the Company and its
subsidiaries, for the repayment of existing indebtedness, and for
other general corporate purposes. To the extent not theretofore
utilized, the net proceeds received by the Company may be placed
in short-term investments, including commercial paper and
certificates of deposit, or utilized to reduce other short-term
borrowings.
3
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to
fixed charges for the Company and its consolidated subsidiaries
for the periods indicated. The Company to date has not issued
Preferred Stock; therefore, the ratios of earnings to combined
fixed charges and preferred stock dividends are the same as the
ratios of earnings to fixed charges set forth below.
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31
------------------------
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges<F1> 14.4 8.1 10.1 9.6 10.6 11.1
_____________________________
<FN>
<F1> On August 7, 1997, the Company completed the spin-off of its
Insurance Services industry segment. The spin-off was accomplished by the
Company's contribution of the business units which comprised the
Insurance Services segment into one wholly-owned subsidiary, ChoicePoint
Inc. All of the common stock of ChoicePoint was then distributed to
Equifax shareholders as a dividend, with one share of ChoicePoint common
stock distributed for each ten shares of Equifax common stock held. The
above calculations exclude the results of ChoicePoint Inc. for each year
presented.
</FN>
</TABLE>
The computation of the ratio of earnings to fixed charges is
based on applicable amounts of the Company and its consolidated
subsidiaries. "Earnings" consist of income before income taxes
and fixed charges. "Fixed charges" consist of interest on
indebtedness, amortization of debt discount and expense and an
estimated amount of rental expense that is deemed to be
representative of the interest factor.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture, as
supplemented from time to time (the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (the
"Trustee"). The Indenture is subject to and governed by the
Trust Indenture Act of 1939, as amended. The statements made
under this heading relating to the Debt Securities and the
Indenture are summaries of the provisions thereof, and are
subject to, and are qualified in their entirety by reference to
the Indenture, including the definitions of certain terms
therein. Certain capitalized terms used below but not defined
herein have the meanings ascribed to them in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the
Company, and the indebtedness represented thereby will rank on a
parity with the Company's other unsecured and unsubordinated
indebtedness. The Debt Securities may be issued in one or more
series. The particular terms of the Debt Securities being offered
(the "Offered Debt Securities"), any modifications of or
additions to the general terms of the Debt Securities and any
applicable Federal income tax considerations that may be
applicable in the case of the Offered Debt Securities will be
described in the Prospectus Supplement relating to the Offered
Debt Securities. Accordingly, for a description of the terms of
the Offered Debt Securities, reference must be made both to the
Prospectus Supplement relating thereto and the description of
Debt Securities set forth in this Prospectus.
The Company conducts its operations through its
subsidiaries. The rights of the Company and its creditors,
including the Holders (as defined below under "Certain
Definitions") of the Debt Securities, to participate in the
distribution of assets of any subsidiary upon the latter's
liquidation or reorganization or otherwise will be subject to the
prior claims of the subsidiary's creditors except to the extent
that the Company may itself be a creditor with recognized claims
against the subsidiary Accordingly, the Debt Securities will be
effectively subordinated to existing and future liabilities of
the Company's subsidiaries.
Reference is made to the Prospectus Supplement for the terms
of any series of Debt Securities being offered, including: (1)
the title of such Debt Securities; (2) the aggregate principal
amount of such Debt Securities; (3) the percentage of the
principal amount at which such Debt Securities will be issued
and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of
acceleration of the Maturity (as defined below under "Certain
Definitions") thereof; (4) the date or dates on which or periods
during which such Debt Securities may be issued, and the date or
dates on which the principal of (and premium, if any, on) such
Debt Securities will be payable; (5) the rate or rates at which
such Debt Securities will bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates
from which such interest, if any, shall accrue, the interest
payment dates on which such interest will be payable and, in the
case of Registered Securities (as defined below under "Certain
Definitions"), the regular record dates, if any, for the interest
5
<PAGE>
payable on such interest payment dates; (6) the additional
offices, if any, where the principal of (and premium, if any) and
interest on such Debt Securities shall be payable; (7) the
obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of the Holder and the period or
periods within which, or the date or dates on which, the prices
at which and the terms and conditions upon which such Debt
Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation; (8) the period or periods
within which, or the date or dates on which, the price or prices
at which, and the terms and conditions upon which such Debt
Securities may be redeemed, if any, in whole or in part, at the
option of the Company or otherwise; (9) if the coin or currency
in which such Debt Securities shall be issuable is U.S. dollars,
the denominations of such Debt Securities if other than
denominations of $1,000 and any integral multiple thereof; (10)
whether such Debt Securities are to be issued as original issue
discount securities ("Discount Securities") and the amount of
discount at which such Debt Securities may be issued and, if
other than the principal amount thereof, the portion of the
principal amount of such Debt Securities which shall be payable
upon declaration of acceleration of the Maturity thereof upon an
Event of Default (as defined below under "Events of Default");
(11) provisions, if any, for the defeasance of such Debt
Securities; (12) whether such Debt Securities are to be issued as
Registered Securities or Bearer Securities (as defined below
under "Certain Definitions") or both, and, if Bearer Securities
are issued, whether any interest coupons appertaining thereto
("Coupons") will be attached thereto; (13) whether provisions for
payment of additional amounts or tax redemptions shall apply and,
if such provisions shall apply, such provisions: and, if Bearer
Securities of such series are to be issued, the applicable
procedures and certificates relating to the exchange of temporary
Global Securities for definitive Bearer Securities; (14) if other
than U.S. dollars, the currency, currencies or currency units
(the term "currency" as used herein will include currency units)
in which such Debt Securities shall be denominated or in which
payment of the principal of (and premium, if any) and interest on
such Debt Securities may be made; (15) if the principal of (and
premium, if any) or interest on such Debt Securities are to be
payable, at the election of the Company or a Holder thereof, in a
currency other than that in which such Debt Securities are
denominated or payable without such election, the period or
periods within which and the terms and conditions upon which,
such election may be made; (16) the date as of which such Debt
Securities shall be dated; (17) if the amount of payments of
principal of (and premium, if any) or interest on such Debt
Securities may be determined with reference to an index, the
manner in which such amounts shall be determined; (18) if such
Debt Securities are denominated or payable in a foreign currency,
any other terms concerning the payment of principal of (and
premium, if any) or any interest on such Debt Securities; (19)
any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to such Debt
Securities; (20) whether such Debt Securities shall be issued in
whole or in part in the form of one or more Global Securities
and, in such case, the depositary or any common depositary for
such Global Securities; and if such Debt Securities are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Securities representing such
Debt Securities may be exchanged for Registered Securities in
definitive form; and (21) any other terms not inconsistent with
the Indenture. (Section 3.01)
6<PAGE>
The Indenture provides that the aggregate principal amount
of Debt Securities that may be issued thereunder is unlimited.
The Debt Securities may be issued in one or more series, in each
case as authorized from time to time by the Board of Directors of
the Company or any committee thereof or any duly authorized officers.
(Section 3.01)
If Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such
Discount Securities will be described in the Prospectus Supplement
relating thereto.
The general provisions of the Indenture do not contain any
provisions that would limit the ability of the Company to incur
indebtedness or that would afford holders of Debt Securities
protection in the event of a highly leveraged or similar
transaction involving the Company. However, the general
provisions of the Indenture do provide that neither the Company
nor any Subsidiary (as defined below under "Certain Definitions")
may subject certain of its property or assets to any mortgage or
other encumbrance unless the Debt Securities issued under the
Indenture are secured equally and ratably with or prior to such
other indebtedness thereby secured. See "Certain Covenants"
below. Reference is made to the Prospectus Supplement related to
the Offered Debt Securities for information with respect to any
deletions from, modifications of or additions to the Events of
Default or covenants of the Company that are described below,
including any addition of covenants or other provisions providing
event risk or similar protection.
All of the Debt Securities of a series need not be issued at
the same time, and may vary as to interest rate, maturity and
other provisions and unless otherwise provided, a series may be
reopened for issuance of additional Debt Securities of such
series. (Section 3.01)
DENOMINATIONS, EXCHANGE, REGISTRATION AND TRANSFER
Unless otherwise specified in the Prospectus Supplement, the
Debt Securities of any series shall be issuable only as
Registered Securities in denominations of $1,000 and any integral
multiple thereof and shall be payable only in U.S. dollars.
(Section 3.02) The Indenture also provides that Debt Securities
of a series may be issuable in global form. See "Book-Entry Debt
Securities." Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities will have Coupons attached.
(Section 2.01)
Registered Securities of any series will be exchangeable for
other Registered Securities of the same series of like aggregate
principal amount and of like Stated Maturity (as defined below
under "Certain Definitions") and with like terms and conditions.
If so provided in the Prospectus Supplement, at the option of the
Holder thereof, to the extent permitted by law, any Bearer
Security of any series which by its terms is registrable as to
principal and interest may be exchanged for a Registered Security
of such series of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon
surrender of such Bearer Security at the Corporate Trust Office
of the Trustee or at any other office or agency of the Company
designated for the purpose of making any such exchanges. Subject
to certain exceptions, any Bearer Security issued with Coupons
surrendered for exchange must be surrendered with all unmatured
Coupons and any matured Coupons in default attached thereto.
(Section 3.05)
7
<PAGE>
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the
provisions of United States income tax laws and regulations
applicable to Debt Securities in effect at the time of such
exchange. (Section 3.05) Except as otherwise specified in the
Prospectus Supplement, in no event may Registered Securities,
including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities. (Section 3.05)
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee, one or more new Registered Securities
of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such
series and of a like Stated Maturity and with like terms and
conditions. No service charge will be made for any transfer or
exchange of Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 3.05)
The Company shall not be required (i) to register, transfer
or exchange Debt Securities of any series during a period
beginning at the opening of business 15 days before the day of
the transmission of a notice of redemption of Debt Securities of
such series selected for redemption and ending at the close of
business on the day of such transmission, or (ii) to register,
transfer or exchange any Debt Security so selected for redemption
in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 3.05)Certain Covenants
The Indenture contains, among other things, the following
covenants:
LIMITATION UPON MORTGAGES AND LIENS. Neither the Company
nor a Subsidiary may create or assume, except in favor of the
Company or a Wholly-Owned Subsidiary (as defined below under
"Certain Definitions"), any mortgage, pledge, lien or encumbrance
upon any Principal Facility (as defined below under "Certain
Definitions") or any stock of any Subsidiary or indebtedness of
any Subsidiary to the Company or any other Subsidiary without
equally and ratably securing the Outstanding Debt Securities.
This limitation will not apply to certain permitted encumbrances
as described in the Indenture, including (a) purchase money
mortgages entered into within specified time limits; (b) liens
extending, renewing or refunding any liens permitted by clause
(a) of this covenant; (c) liens existing on acquired property;
(d) certain tax, materialmen's, mechanic's and judgment liens,
certain liens arising by operation of law and certain other
similar liens; (e) liens in connection with certain government
contracts; (f) certain mortgages, pledges, liens or encumbrances
in favor of any state or local government or governmental agency
in connection with certain tax-exempt financings; (g) liens to
secure the cost of construction or improvement of any property
entered into within specified time limits; and (h) mortgages,
pledges, liens and encumbrances not otherwise permitted if the
sum of the indebtedness thereby secured plus the aggregate sales
price of property involved in sale and leaseback transactions
referred to in clause (a) under " Limitation Upon Sale and
Leaseback Transactions" below does not exceed 15% of Consolidated
8
<PAGE>
Stockholders' Equity (as defined below under "Certain
Definitions"). (Section 12.07)
LIMITATION UPON SALE AND LEASEBACK TRANSACTIONS. The
Company and any Subsidiary will be prohibited from selling any
Principal Facility owned on the date of the Indenture with the
intention of taking back a lease thereof, other than a temporary
lease (a lease of not more than 36 months) with the intent that
the use of the property by the Company or such Subsidiary will be
discontinued at or before the expiration of such period, unless
(a) the sum of the sale price of property involved in sale and
leaseback transactions not otherwise permitted plus all
indebtedness secured by mortgages, pledges, liens and
encumbrances referred to in clause (h) under " Limitation Upon
Mortgages and Liens" above does not exceed 15% of Consolidated
Stockholders' Equity; or (b) the greater of the net proceeds of
such sale or the fair market value of such Principal Facility
(which may be conclusively determined by the Board of Directors
of the Company) are applied within 120 days to the optional
retirement of Outstanding Debt Securities or to the optional
retirement of other Funded Debt (as defined below under "Certain
Definitions") of the Company ranking on a parity with the Debt
Securities. (Section 12.08)
EVENTS OF DEFAULT
Under the Indenture, "Event of Default" with respect to the
Debt Securities of any series means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body): (1) default in the payment of any interest
upon any Debt Security or any payment with respect to the
Coupons, if any, of such series when it becomes due and payable,
and continuance of such default for a period of 30 days; (2)
default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; (3) default
in the deposit of any sinking fund payment, when and as due by
the terms of a Debt Security of such series; (4) default in the
performance, or breach of any covenant or warranty in the
Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in the Indenture
specifically dealt with or which expressly has been included in
the Indenture solely for the benefit of Debt Securities of a
series other than such series), and continuance of such default
or breach for a period of 60 days after there has been given to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied; (5) default (A) in the payment of any scheduled
principal of or interest on any Indebtedness of the Company or
any Subsidiary of the Company (other than Debt Securities of such
series), aggregating more than $20 million in principal amount,
when due after giving effect to any applicable grace period or
(B) in the performance of any other term or provision of any
Indebtedness of the Company or any Subsidiary of the Company
(other than Debt Securities of such series) in excess of $20
million principal amount that results in such Indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such
acceleration shall not have been rescinded or annulled, or such
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Indebtedness shall not have been discharged, within a period of
15 days after there has been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or defaults; (6)
the entry against the Company or any Subsidiary of the Company of
one or more judgments, decrees or orders by a court from which no
appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $20 million, and
the continuance of such judgment, decree or order unsatisfied and
in effect for any period of 45 consecutive days after the amount
thereof is due without a stay of execution; (7) certain events of
bankruptcy, insolvency or reorganization with respect to the
Company; or (8) any other Event of Default provided with respect
to Debt Securities of that series pursuant to the Indenture.
(Section 5.01)
The Indenture requires the Company to file with the Trustee,
annually, an officer's certificate as to the Company's compliance
with all conditions and covenants under the Indenture. (Section
12.02) The Indenture provides that the Trustee may withhold
notice to the Holders of a series of Debt Securities of certain
defaults that are cured within 30 days (except payment defaults
on such Debt Securities) if it determines in good faith that the
withholding of such notice is in the interest of the Holders of
such series of Debt Securities. (Section 6.02)
If an Event of Default with respect to Debt Securities of
any series at the time Outstanding occurs and is continuing, then
in every case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such
series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion
of the principal amount of such Discount Securities as may be
specified in the terms of such Discount Securities) of all the
Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and
payable. Upon payment of such amount in the currency in which
such Debt Securities are denominated (except as otherwise
provided in the Indenture or the Prospectus Supplement), all
obligations of the Company in respect of the payment of principal
of the Debt Securities of such series shall terminate. (Section
5.02)
Subject to the provisions of the Indenture relating to the
duties of the Trustee, in case an Event of Default with respect
to Debt Securities of a particular series shall occur and be
continuing, the Trustee shall be under no obligation to exercise
any of its rights or powers under the Indenture at the request,
order or direction of any of the Holders of Debt Securities of
that series, unless such Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request. (Section 6.03) Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee under the Indenture, or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of
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that series (Section 5.12)
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before
a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in the Indenture, the Holders
of a majority in principal amount of the Outstanding Debt
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the
Trustee a sum in the currency in which such Debt Securities are
denominated (except as otherwise provided in the Indenture or the
applicable Prospectus Supplement) sufficient to pay (A) all
overdue installments of interest on all Debt Securities or all
overdue payments with respect to any Coupons of such series; (B)
the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities; (C) to the
extent that payment of such interest is lawful, interest upon
overdue installments of interest on each Debt Security of such
series or upon overdue payments on any Coupons of such series at
a rate established for such series; and (D) all sums paid or
advanced by the Trustee and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel; and (2) all Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the
principal of Debt Securities of such series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in the Indenture. No such rescission and
waiver will affect any subsequent default or impair any right
consequent thereon. (Section 5.02).
MERGER OR CONSOLIDATION
The Indenture provides that the Company may not consolidate
with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to
any Person, unless (1) the corporation formed by such
consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
(the "successor corporation") is a corporation organized and
existing under the laws of the United States or any State or the
District of Columbia and expressly assumes by a supplemental
indenture the due and punctual payment of the principal of (and
premium, if any) and interest on all the Debt Securities and the
performance of every covenant of the Indenture on the part of the
Company to be performed or observed; (2) immediately after giving
effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing; (3) if,
as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not otherwise
be permitted by the Indenture without making effective provision
whereby the Outstanding Debt Securities and any other
indebtedness of the Company then entitled thereto will be equally
and ratably secured with any and all indebtedness and obligations
secured thereby, the Company or such successor corporation or
Person, as the case may be, will take such steps as will be
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necessary effectively tosecure all Debt Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with the Indenture provisions and
that all conditions precedent therein provided for relating to
such transaction have been complied with. (Section 10.01)
MODIFICATION OR WAIVER
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may modify the
Indenture for any of the following purposes: (1) to evidence the
succession of another corporation to the Company and the
assumption by such successor of the covenants of the Company in
the Indenture and in the Debt Securities; (2) to add to the
covenants of the Company, for the benefit of the Holders of all
or any series of Debt Securities and the Coupons, if any,
appertaining thereto and if such covenants are to be for the
benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series),
or to surrender any right or power conferred in the Indenture
upon the Company; (3) to add any additional Events of Default
(and if such Events of Default are to be applicable to less than
all series, stating that such Events of Default are expressly
being included solely to be applicable to such series); (4) to
add or change any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the issuance
of Debt Securities of any series in bearer form, registrable or
not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the
issuance of Debt Securities of any series in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; (5) to change or
eliminate any of the provisions of the Indenture, provided that
any such change or elimination will become effective only when
there is no Outstanding Debt Security or Coupon of any series
created prior to such modification which is entitled to the
benefit of such provision and as to which such modification would
apply; (6) to secure the Debt Securities; (7) to supplement any
of the provisions of the Indenture to such extent as is necessary
to permit or facilitate the defeasance and discharge of any
series of Debt Securities, provided that any such action shall
not adversely affect the interests of the Holders of Debt
Securities of such series or any other series of Debt Securities
or any related Coupons in any material respect; (8) to establish
the form or terms of Debt Securities and Coupons, if any, of any
series as permitted by the Indenture; (9) to evidence and provide
for the acceptance of appointment thereunder by a successor
Trustee with respect to one or more series of Debt Securities and
to add to or change any of the provisions of the Indenture as is
necessary to provide for or facilitate the administration of the
trusts thereunder by more than one Trustee; or (10) to cure any
ambiguity, to correct or supplement any provision therein which
may be defective or inconsistent with any other provision
therein, or to make any other provisions with respect to matters
or questions arising under the Indenture which will not be
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inconsistent with any provision of the Indenture; provided such
other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities or Coupons, if any, of any
series created prior to such modification in any material respect
(Section 11.01)
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of each
series affected by such modification voting separately, the
Company and the Trustee may modify the Indenture for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the Holders under the
Indenture of such Debt Securities; provided, however, that no
such modification may, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Stared Maturity of
or reduce the amount of any payment to be made with respect to
any Coupon, or change the currency or currencies in which the
principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof, or
adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone
the date fixed for, any payment under any sinking fund or
analogous provisions for any Debt Security, or impair the right
to institute suit for the enforcement of any payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or limit the obligation of the
Company to maintain a paying agency outside the United States for
payments on Bearer Securities; (2) reduce the percentage in
principal amount of the Outstanding Debt Securities of any
series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of
the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; or (3) modify any of
the provisions of the Indenture relating to modifications and
waivers of defaults and covenants, except to increase any such
percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Debt Security of each series affected
thereby. (Section 11.02)
A modification which changes or eliminates any covenant or
other provision of the Indenture with respect to one or more
particular series of Debt Securities and Coupons, if any, or
which modifies the rights of the Holders of Debt Securities and
Coupons of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Debt Securities and Coupons, if any,
of any other series. (Section 11.02)
The Holders of not less than a majority in principal amount
of the Outstanding Debt Securities of any series may on behalf of
the Holders of all the Debt Securities of any such series waive
any past default under the Indenture with respect to such series
and its consequences, except a default (1) in the payment of the
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principal of (or premium, if any) or interest on any Debt
Security of such series, or in the payment of any sinking fund
installment or analogous obligation with respect to the Debt
Securities of such series; or (2) in respect of a covenant or
provision hereof which pursuant to the second paragraph under
"Modification or Waiver" cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security of
such series affected. Upon any such waiver, such default will
cease to exist, and any Event of Default arising therefrom will
be deemed to have been cured, for every purpose of the Debt
Securities of such series under the Indenture, but no such waiver
will extend to any subsequent or other default or impair any
right consequent thereon. (Section 5.13)
The Company may omit in any particular instance to comply
with certain covenants in the Indenture (including, if so
specified in the Prospectus Supplement, any covenant not set
forth in the Indenture but specified in the Prospectus Supplement
to be applicable to the Debt Securities of any series, except as
otherwise provided in the Prospectus Supplement, and the
covenant requiring the Company to maintain its corporate
existence and the covenants relating to the limitation upon
mortgages and liens and the limitation upon sale and leaseback
transactions) with respect to the Debt Securities of any series
if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Debt Securities
of such series either waive such compliance in such instance or
generally waive compliance with such provisions, but no such
waiver may extend to or affect any term, provision or condition
except to the extent expressly so waived, and, until such waiver
becomes effective, the obligations of the Company and the duties
of the Trustee in respect of any such provision will remain in
full force and effect. (Section 12.09)
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Indenture with respect to the Debt Securities of any
series may be discharged, subject to certain terms and
conditions, when (1) either (A) all Debt Securities and the
Coupons, if any, of such series have been delivered to the
Trustee for cancellation, or (B) all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice by the Trustee, and the Company, in the case of (i), (ii)
or (iii) of subclause (B), has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for such
purpose an amount in the currency in which such Debt Securities
are denominated sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Debt Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be: provided,
however, in the event a petition for relief under any applicable
Federal or state bankruptcy, insolvency or other similar law is
filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money
to the Company, the obligations of the Company under the
Indenture with respect to such Debt Securities will not be deemed
terminated or discharged; (2) the Company has paid or caused to
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be paid all other sums payable under the Indenture by the
Company; and (3) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel each stating that
all conditions precedent therein provided relating to the
satisfaction and discharge of the Indenture with respect to such
series have been complied with. (Section 4.01)
If provision is made for the defeasance of Debt Securities
of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in U.S.
dollars, then the provisions of the Indenture relating to
defeasance shall be applicable except as otherwise specified in
the Prospectus Supplement for Debt Securities of such series,
Defeasance provisions, if any, for Debt Securities denominated in
a foreign currency or currencies or for Bearer Securities may be
specified in the Prospectus Supplement. (Section 15.01)
At the Company's option, either (1) the Company shall be
deemed to have been discharged (as defined below under "Certain
Definitions") from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (2) the
Company shall cease to be under any obligation to comply with
certain provisions of the Indenture relating to mergers and
consolidations of the Company and the provisions relating to
limitations upon mortgages and liens and limitations upon sale
and leaseback transactions with respect to Debt Securities of any
series (and, if so specified, any other obligation of the Company
or restrictive covenant added for the benefit of such series)
("covenant defeasance option") at any time after the following
conditions have been satisfied: (A) the Company shall have
deposited or caused to be deposited irrevocably with the Trustee
as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debt
Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below under "Certain
Definitions") which through the payment of interest and principal
in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money
in an amount, or (iii) a combination of (i) and (ii), sufficient,
in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and
interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest or principal and premium
are due; (B) such deposit shall not cause the Trustee with
respect to the Debt Securities of that series to have a
conflicting interest with respect to the Debt Securities of any
series; (C) such deposit will not result in a breach or violation
of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound; (D) if the Debt Securities of such series are
then listed on any national securities exchange, the Company
shall have delivered to the Trustee an opinion of counsel or a
letter or other document from such exchange to the effect that
the Company's exercise of its legal defeasance option or the
covenant defeasance option, as the case may be, would not cause
such Debt Securities to be delisted; (E) no Event of Default or
event (including such deposit) which, with notice or lapse of
time or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be
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continuing on the date of such deposit and, with respect to the
legal defeasance option only, no Event of Default under the
provisions of the Indenture relating to certain events of
bankruptcy or insolvency or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under
such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after such date; and (F) the
Company shall have delivered to the Trustee an opinion of counsel
or a ruling of the Internal Revenue Service to the effect that
the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as
a result of such deposit, defeasance or discharge.
Notwithstanding the foregoing, if the Company exercises its
covenant defeasance option and an Event of Default under the
provisions of the Indenture relating to certain events of
bankruptcy or insolvency or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under
such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after the date of such deposit, the
obligations of the Company referred to under the definition of
covenant defeasance option with respect to such Debt Securities
shall be reinstated. (Section 15.05)
PAYMENT AND PAYING AGENTS
If Debt Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of
Payment for such Debt Securities an office or agency where such
Debt Securities may be presented or surrendered for payment,
where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of such Debt Securities and the Indenture may
be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (1) in the Borough of
Manhattan, The City and State of New York, an office or agency
where any Registered Securities of such series may be presented
or surrendered for payment, where any Registered Securities of
such series may be surrendered for registration of transfer,
where Debt Securities of such series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of such Debt Securities and the Indenture may be served
and where Bearer Securities of such series and related Coupons
may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (2)
subject to any laws or regulations applicable thereto, in a Place
of Payment for such series which is located outside the United
States, an office or agency where such Debt Securities and
related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on such Debt
Securities, if so provided in such series); provided, however,
that if such Debt Securities are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for such Debt Securities in
London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as such Debt
Securities are listed on such exchange, and (3) subject to any
laws or regulations applicable thereto, in a Place of Payment for
such Debt Securities located outside the United States an office
or agency where any Registered Securities of such series may be
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surrendered for registration of transfer, where such Debt
Securities may be surrendered for exchange and where notices and
demands to or upon the Company in respect of such Debt Securities
and the Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee (in the
case of Registered Securities) and at the principal London office
of the Trustee (in the case of Bearer Securities), and the
Company has appointed the Trustee as its agent to receive all
presentations, surrenders, notices and demands. (Section 12.03)
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the
Debt Securities of a series are denominated and payable in U.S.
dollars, payment of principal of and any premium and interest on
such Debt Securities, if so provided in the Prospectus Supplement
shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, the City and State of New York, if (but
only if) payment in U.S. dollars of the full amount of such
principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with the
Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions. (Section 12.03)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in
part in global form that will be deposited with, or on behalf of,
a depositary identified in the Prospectus Supplement. Global
securities may be issued in either registered or bearer form and
in either temporary or permanent form (each a "Global Security").
Payments of principal of (premium, if any) and interest on Debt
Securities represented by a Global Security will be made by the
Company to the Trustee and then by the Trustee to the depositary.
The Company anticipates that any Global Securities will be
deposited with, or on behalf of, The Depository Trust Company,
New York, New York ("DTC"), that such Global Securities will be
registered in the name of DTC's nominee, and that the following
provisions will apply to the depositary arrangements with respect
to any such Global Securities. Additional or differing terms of
the depositary arrangements will be described in the Prospectus
Supplement relating to a particular series of Debt Securities
issued in the form of Global Securities.
So long as DTC or its nominee is the registered owner of a
Global Security, DTC or its nominee, as the case may be, will be
considered the sole Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities represented
by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Debt
Securities in certificated form and will not be considered the
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owners or Holders thereof under the Indenture. The laws of some
states require that certain purchasers of securities take
physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of
beneficial interests in a Global Security.
If DTC is at any time unwilling or unable to continue as
depositary, or ceases to be a clearing agency registered under
the Exchange Act, and a successor depositary is not appointed by
the Company within 90 days, the Company will issue individual
Debt Securities in certificated form in exchange for the Global
Securities. In addition, the Company may at any time, and in its
sole discretion, determine not to have any Debt Securities
represented by one or more Global Securities and, in such event,
will issue individual Debt Securities in certificated form in
exchange for the relevant Global Securities. If Registered
Securities of any series shall have been issued in the form of
one or more Global Securities and if an Event of Default with
respect to the Debt Securities of such series shall have occurred
and be continuing, the Company will issue individual Debt
Securities in certificated form in exchange for the relevant
Global Securities.
The following is based on information furnished by DTC:
DTC will act as securities depositary for Debt Securities
represented by one or more Global Securities. The Debt Securities
will be issued as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One fully-
registered Global Security will be issued for each issue of the
Debt Securities, each in an aggregate principal amount of such
issue, and will be deposited with DTC. If, however, the aggregate
principal amount of any issue exceeds the maximum principal
amount (if any) permitted by DTC, one Global Security will be
issued with respect to such maximum principal amount and an
additional Global Security will be issued with respect to any
remaining principal amount of such issue.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct
Participants ("Direct Participants") include securities brokers
and dealers, banks, trust companies, clearing corporations and
certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to DTC's system is also available
to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
18
<PAGE>
Purchases of Debt Securities represented by one or more
GlobalSecurities under DTC's system must be made by or through
Direct Participants, which will receive a credit for the Global
Securities on DTC's records. The ownership interest of each
beneficial owner of each Global Security ("Beneficial Owner") is
in turn recorded on the Direct and Indirect Participants'
records. A Beneficial Owner will not receive written confirmation
from DTC of its purchase, but such Beneficial Owner is expected
to receive a written confirmation providing details of such
transaction, as well as periodic statements of its holdings, from
the Direct or Indirect Participant through which such Beneficial
Owner entered into such transaction. Transfers of ownership
interests in Global Securities are to be accomplished by entries
made on the books of Participants acting on behalf of the
Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Global
Securities, except in the event that use of the book-entry system
for one or more Global Securities is discontinued.
To facilitate subsequent transfers, all Global Securities
deposited by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of Global
Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Securities;
DTC records reflect only the identify of the Direct Participants
to whose accounts Global Securities are credited, which may or
may not be the Beneficial Owners. The Participants remain
responsible for keeping account of their holdings on behalf of
their customers.
Delivery of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners are governed by arrangements
among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect
to the Global Securities. Under its usual procedures, DTC will
mail an "Omnibus Proxy" to the issuer as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Global Securities
will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with
their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on the payable
date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Paying
Agent or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of
principal and interest to DTC is the responsibility of the
Company or the Paying Agent, disbursement of such payments to
Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
19
<PAGE>
A Beneficial Owner shall give notice to elect to have its
Global Securities purchased or tendered, through its Participant,
to the Paying Agent, and shall effect delivery of such Global
Securities by causing the Direct Participant to transfer the
Participant's interest in the Global Securities, on DTC's
records, to the Paying Agent. The requirement for physical
delivery of Global Securities in connection with a demand for
purchase or a mandatory purchase will be deemed satisfied when
the ownership rights in the Global Securities are transferred by
Direct Participants on DTC's records.
DTC may discontinue providing its services as securities
depositary with respect to the Debt Securities at any time by
giving reasonable notice to the Company or the Agents. Under such
circumstances, in the event that a successor securities
depositary is not appointed within 90 days, certificates
representing Debt Securities will be printed and delivered in
exchange for the Debt Securities represented by the Global
Securities held by DTC.
The Company may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities
depositary). In that event, certificates representing Debt
Securities will be printed and delivered in exchange for the Debt
Securities represented by the Global Securities held by DTC.
None of the Company, any underwriter or agent, the Trustee,
any applicable Paying Agent or the registrar of any Debt
Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
THE TRUSTEE UNDER THE INDENTURE
The First National Bank of Chicago is one of a number of banks
with which the Company maintains ordinary banking relationships
and from which the Company has obtained credit facilities and
lines of credit.
CERTAIN DEFINITIONS
Set forth below is a summary of certain defined terms as
used in the Indenture. Reference is made to the Indenture for
the full definition of all such terms.
"Bearer Security" means any Debt Security (with or without
Coupons), which is payable to bearer and title to which passes by
delivery only, but does not include any Coupons. (Section 1.01)
"Consolidated Stockholders' Equity", at any time, means the
total stockholders' equity of the Company and its consolidated
subsidiaries, determined on a consolidated basis in accordance
with generally accepted accounting principles, as of the end of
the most recently completed fiscal quarter of the Company for
which financial information is then available. (Section 1.01)
"discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and
obligations under, the Debt Securities of such series and to have
satisfied all the obligations under the Indenture relating to the
Debt Securities of such series, except (1) the rights of Holders
of Debt Securities of such series to receive, from the trust fund
20<PAGE>
described under "Discharge, Legal Defeasance and Covenant
Defeasance" above, payment of the principal of (and premium, if
any) and interest on such Debt Securities when such payments are;
(2) the Company's obligations with respect to the Debt Securities
of such series under the provisions relating to exchanges,
transfers and replacement of Debt Securities, the maintenance of
an office or agency of the Company and the defeasance trust fund;
(3) the rights, powers, trusts, duties and immunities of the
Trustee thereunder and the Company's obligation to pay the fees
and expenses of the Trustee; and (4) the provisions of the
Indenture relating to defeasance. (Section 15.03)
"Funded Debt" means any indebtedness for money borrowed,
created, issued, incurred, assumed or guaranteed which would, in
accordance with generally accepted accounting practice, be
classified as long-term debt, but in any event including all
indebtedness for money borrowed, whether secured or unsecured,
maturing more than one year or extendible at the option of the
obligor to a date more than one year, after the date of
determination thereof (excluding any amount thereof included in
current liabilities). (Section 1.01)
"Holder" means, with respect to a Registered Security, the
Person in whose name a Registered Security is registered in the
Security Register, and with respect to a Bearer Security or a
Coupon, the bearer thereof. (Section 1.01)
"Indebtedness" means (1) any liability of any Person (A) for
borrowed money, or (B) evidenced by a bond, note, debenture or
similar instrument (including purchase money obligations but
excluding trade payables), or (C) for the payment of money
relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with generally
accepted accounting principles, or (D) preferred or preference
stock of a Subsidiary of the Company held by Persons other than
the Company or a Subsidiary of the Company; (2) any liability of
others described in the preceding clause (1) that the Person has
guaranteed, that is recourse to such Person or that is otherwise
its legal liability; and (3) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (1) and (2) above.
(Section 1.01)
"Maturity" when used with respect to any Debt Security means
the dare on which the principal of such Debt Security or an
installment of principal becomes due and payable as provided
therein or in the Indenture, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof, required repurchase or
otherwise. (Section 1.01 )
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities
theretofore authenticated and delivered under the Indenture,
except as provided in the Indenture. (Section 1.01)
"Principal Facility" means the real property, fixtures,
machinery and equipment relating to any facility owned by the
Company or any Subsidiary, except any facility that, in the
opinion of the Board of Directors, is not of material importance
to the business conducted by the Company and its Subsidiaries,
taken as a whole. (Section 1.01)
21<PAGE>
"Registered Securities" means any Debt Security in the form
established pursuant to Section 2.01 of the Indenture which is
registered as to principal and interest in the Security Register.
(Section 1.01)
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the directors of
such corporation, irrespective of whether or not 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 or
controlled by the Company or by one or more Subsidiaries thereof,
or by the Company and one or more Subsidiaries. (Section 1.01)
"U.S. Government Obligations" means securities that are (1)
direct obligations of the United States for the payment of which
its full faith and credit is pledged, or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case under clauses (1) or
(2), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for
the account of the holder of 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 interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt. (Section 15.05)
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying
shares) is at the time, directly or indirectly, owned by the
Company, or by one or more Wholly-Owned Subsidiaries of the
Company or by the Company and one or more Wholly-Owned
Subsidiaries. (Section 1.01)
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the Company's authorized
capital stock consists of 300,000,000 shares of Common Stock, par
value $1.25 per share, and 10,000,000 shares of Preferred Stock,
par value $0.01 per share. As of December 31, 1997, approximately
142,608,916 shares of Common Stock were issued and outstanding.
No shares of Preferred Stock are currently outstanding. The
following summary description of the capital stock of the Company
does not purport to be complete and is qualified in its entirety
by reference to the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), its Bylaws and
Georgia corporate law. See "Available Information."
COMMON STOCK
Holders of Common Stock are entitled to one vote for each
share held on all matters submitted to a vote of shareholders and
do not have cumulative voting rights. Any director standing for
election may be elected by holders of a plurality of the shares
of Common Stock entitled to vote at a meeting of shareholders at
22<PAGE>
which the holders of a majority of the outstanding shares
ofCommon Stock are present, in person or by proxy. Holders of
Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the Board of Directors out of funds
legally available therefor, subject to any preferential dividend
rights of outstanding Preferred Stock and certain dividend
limitations contained in the Company's outstanding senior
promissory notes. Upon the liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to
receive ratably the net assets of the Company available after the
payment of all debts and other liabilities and subject to the
prior rights of any outstanding Preferred Stock. Holders of
Common Stock have no preemptive, subscription, redemption or
conversion rights. All outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable.
The rights, preferences and privileges of holders of Common Stock
are subject to, and may be adversely affected by, the rights of
the holders of shares of any series of Preferred Stock which the
Company may designate and issue in the future.
STOCK PURCHASE RIGHTS
Shares of Common Stock have attached to them certain Common
Stock purchase rights ("Rights") pursuant to a Rights Agreement
dated as of October 25, 1995, between the Company and SunTrust
Bank, Atlanta, Georgia, as agent. A Right entitles the
registered holder to purchase from the Company one share of
Common Stock at a price of $92.50 (subject to adjustment to
prevent dilution). Rights become exercisable after the close of
business on the tenth calendar day following the earliest to
occur of the following events: (1) a public announcement that
someone (or group) has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding
Common Stock (an "Acquiring Person"), (2) the commencement of a
tender offer or exchange offer by someone (or group) that would
result in the level of ownership described in (1) above, and (3)
the first date of public announcement of a "Flip-in Event" or
"Flip-over Event" as described in the Company s Registration
Statement on Form 8-A, dated November 2, 1995, including any
amendments thereto. The Rights expire on November 6, 2005.
Under certain circumstances, including within certain time
periods, the Company may exchange one share of Common Stock for
each Right, subject to adjustment, and it may redeem the Rights
for $0.01 each.
The Rights have anti-takeover effects. They will cause
substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Board of
Directors, except pursuant to an offer conditioned on a
substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination
approved by the Board of Directors, because (subject to
limitations) the Rights may be redeemed by the Company prior to
the time the Rights would otherwise become exercisable, or if
later, the time that a person or group has become an Acquiring
Person.<PAGE>
PREFERRED STOCK
Under its Articles of Incorporation, the Company is
authorized to issue up to 10,000,000 shares of Preferred Stock,
par value $0.01 per share. There are no restrictions in the
Articles of Incorporation on the repurchase or redemption of
shares of Preferred Stock. Preferred Stock may be issued from
time to time by the Board of Directors of the Company, without
shareholder approval, in such series and with such preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and
conditions of redemption, as may be fixed by the Board of
Directors in the resolution authorizing the issuance; provided
however, that holders of Preferred Stock shall not be entitled to
more than the greater of (i) one vote per $100 liquidation value
or (ii) one vote per share. The holders of Preferred Stock will
not be entitled to vote on any matter separately as a class,
except to the extent specified with respect to each series with
respect to any amendment or alteration of the provisions of the
Articles of Incorporation that would adversely effect the powers,
preferences, or special rights of the applicable series of
Preferred Stock. The issuance of Preferred Stock by the Board of
Directors could adversely affect the rights of holders of shares
of Common Stock since Preferred Stock may be issued having
preference with respect to dividends and in liquidation over the
Common Stock, and have voting rights, contingent or otherwise,
that could dilute the voting rights, net income per share and net
book value of the Common Stock. In addition, the ability of the
Board of Directors to issue shares of Preferred Stock and to set
the voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions, thereof without further shareholder action might
serve as an anti-takeover measure and, as such, help to
perpetuate the incumbent management of the company or thwart a
takeover attempt, notwithstanding the desire of shareholders to
change management or accept a takeover offer. As of the date of
this Prospectus, the Board of Directors has not authorized the
issuance of any shares of Preferred Stock, and the Company has no
agreements, arrangements or understandings with respect to the
issuance of any shares of Preferred Stock.
23<PAGE>
The specific terms of any Preferred Stock being offered (the
"Offered Preferred Stock") will be described in the Prospectus
Supplement relating to such Offered Preferred Stock. The
following summaries of certain provisions of the Preferred Stock
are subject to, and are qualified in their entirety by reference
to, the Articles of Incorporation and the Certificate of
Designation relating to the particular class or series of
Preferred Stock. Reference is made to the Prospectus Supplement
relating to the Offered Preferred Stock offered thereby for
specific terms, including:
(1) The designation of such Preferred Stock.
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the initial offering
price of such Preferred Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such
Preferred Stock.
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable.
(5) The procedures for any auction and remarketing, if any, of
such Preferred Stock.
(6) The provisions for a sinking fund, if any, for such
Preferred Stock.
(7) The provisions for redemption, if applicable, of such
Preferred Stock.
(8) Any listing of such Preferred Stock on any securities
exchange.
(9) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into or exchangeable for
Common Stock, and whether at the option of the holder
thereof or the Company.
(10) Whether such Preferred Stock will rank senior or junior to
or on a parity with any other class or series of Preferred
Stock.
(11) The voting rights, if any, of such Preferred Stock.
(12) Any other specific terms, preferences, rights, limitations
or restrictions of such Preferred Stock.
(13) A discussion of Federal income tax considerations applicable
to such Preferred Stock.
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
Pursuant to the Company's Articles of Incorporation, the
Company's Board of Directors is divided into three classes as
nearly equal in number as the total number of directors permits.
Directors are elected to each class at successive annual meetings
to serve three-year terms. Any newly created or eliminated
directorships resulting from an increase or decrease in the
number of authorized directors are divided equally among the
three classes so as to maintain such classes as nearly equal in
24<PAGE>
number as possible, provided that in no case shall a decrease in
the number of directors for a class shorten the term of an
incumbent director.
Under the Articles of Incorporation, the Board of Directors
has the right to make, alter, amend, change, add to or repeal the
Company's Bylaws and the right (which, to the extent exercised,
is exclusive) to establish the rights, powers, duties, rules and
procedures that from time to time shall govern the Board of
Directors and each of its members, including without limitation,
the vote required for any action by the Board of Directors, and
that from time to time shall affect the directors' powers to
manage the business and affairs of the Company. No Bylaw may be
adopted by the shareholders that would impair or impede the
implementation of the foregoing.
The affirmative vote of not less than two-thirds (2/3) of
the votes entitled to be cast by the holders of all then
outstanding shares of voting stock of the Company, voting
together as a single class, is required to make, alter, amend,
change, add to or repeal any provision of the Articles of
Incorporation or Bylaws that would be inconsistent with the
foregoing governance provisions, unless a majority of the Board
of Directors has recommended such a change.
The above-referenced provisions with regard to the Company's
Board of Directors may have certain anti-takeover effects by
preventing or delaying a change in the membership of the
Company's Board of Directors. Such provisions are intended to
encourage persons who may seek to acquire control of the Company
to initiate such an acquisition through negotiations with the
Company's Board of Directors. However, the effect of such
provision may be to discourage a third party from making a
partial tender offer or otherwise attempting to obtain control
of, the Company. To the extent any potential acquirors are
deterred by the Company's Board of Directors, such provisions may
have the effect of preserving incumbent management in office.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is
SunTrust Bank, Atlanta, Georgia.
DESCRIPTION OF DEPOSITARY SHARES
The Company may issue receipts ("Depositary Receipts") for
Depositary Shares, each of which will represent a fractional
interest of a share of a particular series of Preferred Stock, as
specified in the applicable Prospectus Supplement. Shares of
Preferred Stock of each series represented by Depositary Shares
will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") among the Company, the depositary named
therein (the "Preferred Stock Depositary") and the holders from
time to time of the Depositary Receipts.
GENERAL
Subject to the terms of the Depositary Agreement, each owner
of a Depositary Receipt will be entitled, in proportion to the
fractional interest of a share of a particular series of
Preferred Stock represented by the Depositary Shares evidenced by
such Depositary Receipt, to all the rights and preferences of the
Preferred stock represented by such Depositary Shares (including
25<PAGE>
dividend, voting, conversion, redemption and liquidation
rights).The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the applicable Deposit Agreement.
Immediately following the issuance and delivery of the Preferred
Stock by the Company to the Preferred Stock Depositary, the
Company will cause the Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the
applicable form of Deposit Agreement and Depositary Receipt may
be obtained from the Company upon request, and the statements
made hereunder relating to the Deposit Agreement and the
Depositary Receipts to be issued thereunder are summaries of
certain provisions thereof and do not purport to be complete and
are subject to, and qualified in their entirety by reference to,
all of the provisions of the applicable Deposit Agreement and
related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash
dividends or other cash distributions received in respect of the
Preferred Stock to the record holders of Depositary Receipts
evidencing the related Depositary Shares in proportion to the
number of such Depositary Receipts owned by such holders, subject
to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to
the Preferred Stock Depositary.
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by
it to the record holders of Depositary Receipts entitled thereto,
subject to certain obligations of holders to file proofs,
certificates and other information and to pay certain charges and
expenses to the Preferred Stock Depositary, unless the Preferred
Stock Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Stock Depositary may,
with the approval of the Company, sell such property and
distribute the net proceeds from such sale to such holders.
No distribution will be made in respect of any Depositary
Share to the extent that it represents any Preferred Stock
converted into other securities.
26
<PAGE>
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate
trust office of the Preferred Stock Depositary (unless the
related Depositary Shares have previously been called for
redemption or converted into other securities), the holders
thereof will be entitled to delivery at such office, to or upon
such holder's order, of the number of whole or fractional shares
of the Preferred Stock and any money or other property
represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to
receive whole or fractional shares of the related Preferred Stock
on the basis of the proportion of Preferred Stock represented by
such Depositary Share as specified in the applicable Prospectus
Supplement, but holders of such shares of Preferred Stock will
not thereafter be entitled to receive Depositary Shares therefor.
If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of Depositary
Shares representing the number of shares of Preferred Stock to be
withdrawn, the Preferred Stock Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held
by the Preferred Stock Depositary, the Preferred Stock Depositary
will redeem as of the same redemption date the number of
Depositary Shares representing shares of the Preferred Stock so
redeemed, provided the Company shall have paid in full to the
Preferred Stock Depositary the redemption price of the Preferred
Stock to be redeemed plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the
corresponding proportion of the redemption price and any other
amounts per share payable with respect to the Preferred Stock.
If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional
Depositary Shares) or by any other equitable method determined by
the Company.
From and after the date fixed for redemption, all dividends
in respect of the shares of Preferred Stock so called for
redemption will cease to accrue, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all
rights of the holders of the Depositary Receipts evidencing the
Depositary Shares so called for redemption will cease, except the
right to receive any moneys payable upon such redemption and any
money or other property to which the holders of such Depositary
Receipts were entitled upon such redemption and surrender thereof
to the Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders
of the Preferred Stock are entitled to vote, the Preferred Stock
Depositary will mail the information contained in such notice of
meeting to the record holders of the Depositary Receipts
evidencing the Depositary Shares which represent such Preferred
27<PAGE>
Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date
as the record date for the Preferred Stock) will be entitled to
instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the amount of Preferred Stock
represented by such holder's Depositary Shares. The Preferred
Stock Depositary will vote the amount of Preferred Stock
represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all reasonable
action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to
do so. The Preferred Stock Depositary will abstain from voting
the amount of Preferred Stock represented by such Depositary
Shares to the extent it does not receive specific instructions
from the holders of Depositary Receipts evidencing such
Depositary Shares. The Preferred Stock Depositary shall not be
responsible for any failure to carry out any instruction to vote,
or for the manner or effect of any such vote made, as long as
such action or non-action is in good faith and does not result
from negligence or willful misconduct of the Preferred Stock
Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary, the holders of
each Depositary Receipt will be entitled to the fraction of the
liquidation preference accorded each share of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, are not convertible into
Common Stock or any other securities or property of the Company.
Nevertheless, if so specified in the applicable Prospectus
Supplement relating to an offering of Depositary Shares, the
Depositary Receipts may be surrendered by holders thereof to the
Preferred Stock Depositary with written instructions to the
Preferred Stock Depositary to instruct the Company to cause
conversion of the Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipts into whole shares of
Common Stock, other shares of Preferred Stock of the Company or
other shares of stock, and the Company has agreed that upon
receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same
procedures as those provided for delivery of Preferred Stock to
effect such conversion. If the Depositary Shares evidenced by a
Depositary Receipt are to be converted in part only, a new
Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock
will be issued upon conversion, and if such conversion would
result in a fractional share being issued, an amount will be paid
in cash by the Company equal to the value of the fractional
interest based upon the closing price of the Common Stock on the
last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary
Shares which represent the Preferred Stock and any provision of
the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However,
28<PAGE>
any amendment that materially and adversely alters the rights of
the holders of Depositary Receipts or that would be materially
and adversely inconsistent with the rights granted to the holders
of the related Preferred Stock will not be effective unless such
amendment has been approved by the existing holders of at least
sixty-six and two-third percent (66K%) of the Depositary Shares
evidenced by the Depositary Receipts then outstanding. No
amendment shall impair the right, subject to certain exceptions
in the Depositary Agreement, of any holder of Depositary Receipts
to surrender any Depositary Receipt with instructions to deliver
to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply
with law. Every holder of an outstanding Depositary Receipt at
the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby.
The Deposit Agreement may be terminated by the Company upon
not less than 30 days' prior written notice to the Preferred
Stock Depositary if the holders of a majority of each series of
Preferred Stock affected by such termination consents to such
termination, whereupon the Preferred Stock Depositary shall
deliver or make available to each holder of Depositary Receipts,
upon surrender of the Depositary Receipts held by such holder,
such number of whole or fractional shares of Preferred Stock as
are represented by the Depositary Shares evidenced by such
Depositary Receipts together with any other property held by the
Preferred Stock Depositary with respect to such Depositary
Receipts. In addition, the Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares shall have
been redeemed, (ii) there shall have been a final distribution in
respect of the related Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of
Depositary Receipts evidencing the Depositary Shares representing
such Preferred Stock or (iii) each share of the related Preferred
Stock shall have been converted into securities of the Company
not so represented by Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
Deposit Agreement. In addition, the Company will pay the fees
and expenses of the Preferred Stock Depositary in connection with
the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and
expenses of the Preferred Stock Depositary for any duties
requested by such holders to be performed which are outside of
those expressly provided for in the Deposit Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by
delivering to the Company notice of its election to do so, and
the Company may at any time remove the Preferred Stock
Depositary, any such resignation or removal to take effect upon
the appointment of a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and
must be a bank or trust company having its principal office in
29<PAGE>
the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of
Depositary Receipts any reports and communications from the
Company which are received by the Preferred Stock Depositary with
respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will
be liable if it is prevented from or delayed in, performing its
obligations under the Deposit Agreement, by law or any
circumstances beyond its control. The obligations of the Company
and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good
faith and without negligence (in the case of any action or
inaction in the voting of Preferred Stock represented by the
Depositary Shares), gross negligence or willful misconduct, and
the Company and the Preferred Stock Depositary will not be
obligated to prosecute or defend any legal proceeding in respect
of any Depositary Receipts, Depositary Shares or shares of
Preferred Stock represented thereby unless satisfactory indemnity
is furnished. The Company and the Preferred Stock Depositary may
rely on written advice of counsel or accountants, or information
provided by persons presenting shares of Preferred Stock
represented thereby for deposit, holders of Depositary Receipts
or other persons believed in good faith to be competent to give
such information, and on documents believed in good faith to be
genuine and signed by a proper party.
In the event the Preferred Stock Depositary shall receive
conflicting claims, requests or instructions from any holders of
Depositary Receipts, on the one hand, and the Company, on the
other hand, the Preferred Stock Depositary shall be entitled to
act on such claims, requests or instructions received from the
Company.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities
(the "Debt Warrants"), Preferred Stock (the "Preferred Stock
Warrants"), Depositary Shares (the "Depositary Shares Warrants")
or Common Stock (the "Common Stock Warrants," collectively with
the Debt Warrants, the Preferred Stock Warrants and the
Depositary Shares Warrants (the "Warrants"). Warrants may be
issued independently or together with any Offered Securities (as
defined under "Plan of Distribution") and may be attached to or
separate from such Offered Securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to
be entered into between the Company and a bank or trust company,
as warrant agent (the "Warrant Agent"), all as shall be set forth
in the Prospectus Supplement relating to the Warrants being
offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms
of Debt Warrants offered thereby, the Warrant Agreement relating
to such Debt Warrants and the Debt Warrant certificates
30<PAGE>
representing such Debt Warrants, including the following: (i) the
title of such Debt Warrants; (ii) the aggregate number of such
Debt Warrants; (iii) the price or prices at which such Debt
Warrants will be issued; (iv) the designation, aggregate
principal amount and terms of the Debt Securities purchasable
upon exercise of such Debt Warrants, the exercise price and the
procedures, terms, limitations and conditions relating to the
exercise of such Debt Warrants; (v) the designation and terms of
any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each
such Debt Security; (vi) the date, if any, on and after which
such Debt Warrants and the related Debt Securities will be
separately transferable; (vii) the date on which the right to
exercise such Debt Warrants shall commence, and the date on which
such right shall expire; (viii) the maximum or minimum number of
such Debt Warrants which may be exercised at any time; (ix) a
discussion of the material United States Federal income tax
considerations applicable to such Debt Warrants; and (x) any
other terms of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt
Warrant certificates of different denominations, and Debt
Warrants may be exercised at the corporate trust office of the
Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the
rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payments of principal of (or
premium, if any) or interest, if any, on the Debt Securities
purchasable upon such exercise.
OTHER WARRANTS
The applicable Prospectus Supplement will describe the
following terms of Preferred Stock Warrants, Depositary Shares
Warrants and Common Stock Warrants in respect of which this
Prospectus is being delivered: (i) the title of such Warrants;
(ii) the Securities for which such Warrants are exercisable;
(iii) the price or prices at which such Warrants will be issued;
(iv) the number of such Warrants issued with each share of
Preferred Stock, Common Stock or Depositary Share; (v) any
provisions for adjustment of the number or amount of shares of
Preferred Stock, Common Stock or Depositary Shares receivable
upon exercise of such Warrants or the exercise price of such
Warrants; (vi) if applicable, the date on and after which such
Warrants and the related Preferred Stock, Common Stock or
Depositary Shares will be separately transferable; (vii) if
applicable, a discussion of the material United States Federal
income tax considerations applicable to such Warrants; (viii) any
other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such
Warrants; (ix) the date on which the right to exercise such
Warrants shall commence, and the date on which such right shall
expire; (x) the maximum or minimum number of such Warrants which
may be exercised at any time; and (xi) any other terms of such
Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase
for cash such principal amount of Debt Securities or shares of
Preferred Stock, Common Stock or Depositary Shares at such
exercise price as shall in each case be set forth in, or be
31<PAGE>
determinable as set forth in, the Prospectus Supplement relating
to the Warrants offered thereby. Warrants may be exercised at
any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants
offered thereby. After the close of business on the expiration
date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus
Supplement relating to the Warrants offered thereby. Upon
receipt of payment and the Warrant certificate properly completed
and duly executed at the corporate trust office of the Warrant
Agent or any other office indicated in the Prospectus Supplement,
the Company will, as soon as practicable, forward the Debt
Securities, Depositary Shares or shares of Preferred Stock or
Common Stock purchasable upon such exercise. If less than all of
the Warrants represented by such Warrant certificate are
exercised, a new Warrant certificate will be issued for the
remaining Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the
United States: (i) through underwriters or dealers, (ii) directly
to a limited number of purchasers or to a single purchaser or
(iii) through agents. The Prospectus Supplement with respect to
the Securities being offered (the "Offered Securities" ) will set
forth the terms of the offering of the Offered Securities,
including the name or names of any underwriters or agents, the
purchase price of the Offered Securities and net proceeds to the
Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities
will be acquired by the underwriters for their own accounts and
may be resold from time to time in one or more transactions, at a
fixed public offering price or at varying prices determined at
the time of sale. The Securities may be offered to the public
either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more underwriters.
The underwriter or underwriters with respect to a particular
underwritten offering of Securities, or, if any underwriting
syndicate is used, the managing underwriter or underwriters, will
be set forth on the cover of the applicable Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters
to purchase the Offered Securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all
of the Offered Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities in
respect of which this Prospectus is delivered, and if so
specified in the applicable Prospectus Supplement, the Company
will sell such Offered Securities to the dealers as principals.
The dealers may then resell such Offered Securities to the public
at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction
will be set forth in the applicable Prospectus Supplement.
32<PAGE>
The Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any
agent involved in the offer or sale of the Offered Securities in
respect to which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement.
Underwriters, dealers and agents may be entitled under
agreements entered into with the Company to indemnification by
the Company against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments which the underwriters, dealers or agents may
be required to make in respect thereof. Underwriters, dealers
and agents may be customers of, may engage in transactions with,
or perform services for, the Company in the ordinary course of
business.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed
upon for the Company by Kilpatrick Stockton LLP, Atlanta,
Georgia, counsel to the Company and for any underwriters or
agents by Simpson Thacher & Bartlett, New York, New York.
EXPERTS
The consolidated financial statements and schedule of the
Company appearing in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996 have been audited by Arthur
Andersen LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference.
Such consolidated financial statements and schedule are, and
audited financial statements to be included in subsequently filed
documents will be, incorporated herein by reference in reliance
upon the reports of such auditors pertaining to such financial
statements (to the extent covered by consents filed with the
Commission) given upon the authority of such firm as experts in
accounting and auditing.
33<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection
with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions.
All of the amounts shown are estimated, except the SEC
registration fee.
SEC registration fee . . . . . . . . . . . . $118,000
Legal fees and expenses . . . . . . . . . . . 25,000
Printing and engraving . . . . . . . . . . . 30,000
Fees of accountants . . . . . . . . . . . . . 10,000
Fees of trustee . . . . . . . . . . . . . 30,000
Blue sky fees and expenses . . . . . . . . . 5,000
Rating agency fees . . . . . . . . . . . . . 125,000
Miscellaneous . . . . . . . . . . . . . 20,000
-------
Total . . . . . . . . . . . . . . . . . . $363,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Georgia Business Corporation Code permits, and the
Company's Bylaws require, the Company to indemnify any person who
was or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (which could
include actions, suits or proceedings under the Securities Act,
whether civil, criminal, administrative, or investigative (other
than an action brought by or on behalf of the Company) by reason
of the fact that such person is or was a director or officer of
the Company or is or was serving at the request of the Company as
a director or officer of another corporation, partnership, joint
venture, trust, or other enterprise, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. With regard to actions or suits by or
in the right of the Company, indemnification is limited to
reasonable expenses incurred in connection with the proceeding
and generally is not available in connection with such a
proceeding in which such person was adjudged liable to the
Company.
In addition, the Company carries insurance on behalf of
directors and officers that may cover liabilities under the
Securities Act.
II-1
<PAGE>
ITEM 16. EXHIBITS.
A list of exhibits included as part of this Registration
Statement is set forth in the Exhibit Index appearing elsewhere
herein and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement.
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement:
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and 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 Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
II-2<PAGE>
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on March 6, 1998.
EQUIFAX INC.
By: /s/ C.B. ROGERS, JR.
C.B. Rogers, Jr.
Chairman of the Board
Each person whose signature appears below hereby constitutes
and appoints C.B. Rogers, Jr., and David A. Post and either of
them, as his or her true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement on Form S-3
and to cause the same to be filed, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing whatsoever requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all acts and things that said
attorneys-in-fact and agents, or either of them or their
substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this registration statement has been signed below by
the following persons in the capacities and on the dates
indicated.
Signature Title Date
--------- ----- -----
/s/ C.B. ROGERS, JR. Chairman of the Board March 6, 1998
C. B. Rogers, Jr.
/s/ THOMAS F. CHAPMAN President, Chief March 6, 1998
Thomas F. Chapman Executive Officer and
Director (principal
executive officer)
/s/ DAVID A. POST Corporate Vice President March 6, 1998
David A. Post and Chief Financial
Officer (principal
financial officer)
/s/ PHILIP J. MAZZILLI Corporate Vice President, March 6, 1998
Philip J. Mazzilli Treasurer and Controller
(principal accounting
officer)
/s/ D. W. MCLAUGHLIN Director March 6, 1998
D. W. McLaughlin
/s/ LEE A. AULT, III Director March 6, 1998
Lee A. Ault, III
/s/ JOHN L. CLENDENIN Director March 6, 1998
John L. Clendenin
_______________________ Director March 6, 198
A. W. Dahlberg
/s/ ROBERT P. FORRESTAL Director March 6, 1998
Robert P. Forrestal
/s/ L. PHILLIP HUMANN Director March 6, 1998
L. Phillip Humann
/s/ LARRY L. PRINCE Director March 6, 1998
Larry L. Prince
/s/ D. RAYMOND RIDDLE Director March 6, 1998
D. Raymond Riddle
___________________________ Director March 6, 1998
Betty L. Siegel, Ph.D.
/s/ LOUIS W. SULLIVAN, M.D. Director March 6, 1998
Louis W. Sullivan, M.D.
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------
1.1 Form of Underwriting Agreement.
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit "B" to the Company's
definitive Proxy Statement for the 1996 Annual Meeting of
Shareholders, filed March 27, 1996 (File No. 1-6605)).
4.2 Bylaws of the Company (incorporated by reference to Commission File
No. 1-6605, Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996).
4.3 Loan Agreement (Incorporated herein by reference to Exhibit 4.1 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Form 10-K/A filed April 4, 1996
(File No. 1-6605)).
4.4 Portion of Prospectus and Trust Indenture (Incorporated herein by
reference to the Company's Registration Statement on Form S-3 filed
on June 17, 1993 (Reg. No. 33-62820)).
4.5 Rights Agreement (Incorporated herein by reference to Exhibit 99 to
the Company's Form 8-A filed on November 2, 1995 (File No.
1-6605)).
4.6 Form of Indenture to be entered into between the Company and The First
National Bank of Chicago, as trustee, relating to the Debt Securities.
*4.7 Form of Fixed Rate Note.
*4.8 Form of Floating Rate Note.
*4.9 Form of Debt Securities Warrant Agreement.
*4.10 Form of Preferred Stock Warrant Agreement.
*4.11 Form of Common Stock Warrant Agreement.
*4.12 Form of Deposit Agreement.
5. Opinion of Kilpatrick Stockton LLP
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Kilpatrick Stockton LLP (included in Exhibit 5).
24 Power of Attorney (included in the signature page of this
Registration Statement).
25.1 Statement of Eligibility of The First National Bank of Chicago under the
Trust Indenture Act of 1939 on Form T-1 relating to the Indenture.
_________________________
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.
EQUIFAX INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
________, 199_
1. INTRODUCTORY. Equifax Inc., a Georgia corporation
(the "Company"), proposes to issue and sell from time to time its
unsecured debt securities, consisting of debentures, notes and
other unsecured evidences of indebtedness in one or more series
("Debt Securities"), (ii) shares of preferred stock, par value
$.01 per share, in one or more series, (iii) shares of common
stock, $1.25 par value, (iv) shares of preferred stock
represented by depositary shares ("Depositary Shares"), and (v)
warrants (the "Warrants") to purchase Debt Securities, preferred
stock, common stock or Depositary Shares, all of which (together
with any securities issuable upon conversion, exchange or
exercise of any of thereof) have been registered under the
registration statement referred to in Section 2(a) (such Debt
Securities, preferred stock, common stock, Depositary Shares and
Warrants (together with any securities issuable upon conversion,
exchange or exercise of any of thereof) are herein collectively
called "Registered Securities"). If so specified in a Terms
Agreement (as hereinafter defined) referred to in Section 3, the
Company proposes to grant to the underwriters an option to
purchase up to the amount of Registered Securities specified in
such Terms Agreement (the "Option Securities"). Debt Securities
will be issued under one or more indentures (as amended or
supplemented from time to time, an "Indenture" and collectively,
the "Indentures"), more particularly described in a Terms
Agreement, between the Company and the trustee named therein (the
"Trustee"), in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of
the Debt Securities being determined at the time of sale. The
preferred stock will be issued in one or more series, which
series may vary as to voting rights, dividends, optional and
mandatory redemption provisions, liquidation preference and
conversion provisions and other terms, with all such terms for
any particular series or issue of the preferred stock being
determined at the time of sale. Additional representations,
warranties, covenants, conditions and other terms related to any
issue of Depositary Shares or Warrants (and any securities
issuable upon conversion, exchange or exercise thereof) will be
set forth in the Terms Agreement applicable thereto. The
Registered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (including, without
limitation, any Option Securities) involved in any such offering
are hereinafter referred to as the "Securities." The firm or
firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any,
specified in a Terms Agreement are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement
does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement, shall mean the
Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as of the date of this
Agreement as follows:
A registration statement on Form S-3 (File No.
333-________) with respect to the Registered Securities (i)
has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and (ii) has been filed with
the Commission under the Securities Act. Such registration
statement has become effective under the Securities Act. If
any post-effective amendment to such registration statement
has been filed with the Commission prior to the date of the
applicable Terms Agreement, the most recent such amendment
has been declared effective by the Commission. Copies of
such registration statement and any amendments thereto have
been delivered by the Company to the Representatives. As
used in this Agreement, "Effective Time" means the
respective date and time as of which such registration
statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission;
and "Effective Date" means the respective applicable date of
the Effective Time. As provided in Section 4(a), a
prospectus supplement relating to the Securities, the terms
of the offering thereof and the other manners set forth
therein has been prepared and will be filed pursuant to Rule
424 under the Securities Act. In addition, a preliminary
prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof, and the other
matters set forth therein also may be prepared and filed
pursuant to Rule 424 under the Securities Act. Such
prospectus supplement, in the form filed on or after the
date of this Agreement pursuant to Rule 424, is referred to
in this Agreement as the "Prospectus Supplement", and any
such preliminary prospectus supplement in the form filed
after the date of this Agreement pursuant to Rule 424 is
referred to as the "Preliminary Prospectus Supplement." Any
prospectus accompanied by a Preliminary Prospectus
Supplement is referred to in this Agreement, collectively
with such Preliminary Prospectus Supplement, as a
"Preliminary Prospectus." The registration statement
referred to in this Section 2(a), as amended at the time of
execution and delivery of the Terms Agreement, including the
exhibits thereto (but excluding the Statement of
Qualification and Eligibility ("Form T-1")) and the
documents filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents") and the information, if any,
deemed to be a part of the registration statement pursuant
to Rule 430A(b) under the Securities Act, is called the
"Registration Statement"; and the basic prospectus included
therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus
Supplement, is called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to
the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case
including the Incorporated Documents. Notwithstanding the
foregoing, any prospectus supplement prepared or filed with
respect to an offering pursuant to the Registration
Statement of securities other than the Securities shall not
be deemed to have supplemented the Prospectus. The
Commission has not issued any order suspending the
effectiveness of the Registration Statement, and no such
stop order has been initiated or threatened by the
Commission.
(b) on the Effective Date, the Registration Statement
conformed in all material respects to the requirements of
the Securities Act and the Rules and Regulations, and 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
on the date of the applicable Terms Agreement, and at the
time of filing of the Prospectus pursuant to Rule 424(b)
under the Securities Act, the Prospectus will conform in all
material respects to the requirements of the Securities Act
and the Rules and Regulations, and will not include 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, not misleading; and on the Effective Date and the
Closing Date, respectively, the Indenture, if any, described
in the Terms Agreement conformed and will conform in all
material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations thereunder;
provided that no representation or warranty is made as to
(i) information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein or (ii) that
part of the Registration Statement which shall constitute
the Form T-1 under the Trust Indenture Act.
(c) Arthur Andersen LLP, who have certified the
financial statements and supporting schedules included in
the Registration Statement, are independent public
accountants as required by the Securities Act and the Rules
and Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as set forth in the Registration
Statement and the Prospectus, there has been no material
adverse change or any development involving a prospective
material adverse change in the business, prospects,
properties, operations, condition (financial or other), net
worth or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, and since
the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the
Company and its subsidiaries taken as a whole, except for
liabilities or obligations which are reflected in the
Registration Statement and the Prospectus.
(e) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby, and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities, have
been duly and validly authorized by the Company, and this
Agreement has been duly and validly executed and delivered
by the Company.
(f) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities do not
and will not (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any agreement, instrument, franchise, license
or permit to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries
or their respective properties or assets may be bound or
(ii) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or
any of its subsidiaries or any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets is required for
the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by
the Company and the consummation of the transactions
contemplated hereby and thereby, and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities,
including the issuance, sale and delivery of the Securities
to be issued, sold and delivered by the Company hereunder,
except the registration under the Securities Act of the
Securities and such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and
permits as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters.
(g) All of the outstanding shares of Common Stock are
duly and validly authorized and issued, fully paid and
nonassessable and were not issued and are not now in
violation of or subject to any preemptive rights. The
common stock and preferred stock, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when issued and paid for pursuant to the Terms
Agreement, will be duly and validly issued, fully paid and
non-assessable and will not be issued in violation of or be
subject to any preemptive rights. The Company had, at
________, 199__, an authorized and outstanding
capitalization as set forth in the Registration Statement
and the Prospectus. The common stock and the preferred
stock, if any, described in the Terms Agreement conform to
the descriptions thereof contained in the Registration
Statement and the Prospectus.
(h) Each of the Company and each of its subsidiaries
(as defined in Rule 405 of the Rules and Regulations) has
been duly organized and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries is
duly qualified and in good standing as a foreign corporation
in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary,
except for those failures to be so qualified or in good
standing which will not in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as
a whole. Each of the Company and its subsidiaries has all
requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own,
lease and operate its properties and conduct its business as
now being conducted and as described in the Registration
Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license
or permit contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the
Prospectus. All of the issued shares of capital stock of
each significant subsidiary of the Company have been duly
and validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities, claims, security interests, restrictions on
transfer, shareholders agreements, voting trusts or other
defects in title. None of the subsidiaries of the Company,
other than those so identified in the Terms Agreement, is a
"significant subsidiary," as such term is defined in Rule
405 of the Rules and Regulations.
(i) The Indenture, if any, described in the Terms
Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee under the
Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company
in accordance with its terms.
(j) The Debt Securities, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when the terms of the Debt Securities and of their
issuance and sale have been duly established in accordance
with the Indenture, the Terms Agreement (including this
Agreement) and the Debt Securities have been duly executed,
authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with the Terms
Agreement (including this Agreement), the Debt Securities
will be duly and validly issued and delivered by the Company
and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance
with their terms and entitled to the benefits of the
Indenture; if any Securities to be issued are convertible,
the shares of common stock issuable upon conversion thereof
have been duly authorized by the Company, have been duly
reserved for issuance upon conversion of the Securities and,
when issued upon the conversion of the Securities, will be
duly and validly issued, fully paid and non-assessable; no
further approval or authority of the stockholders or the
Board of Directors of the Company will be required for the
issuance and sale of the Securities as contemplated herein
or the issuance of the shares of common stock upon
conversion of the Securities; and the Debt Securities and
the Indenture, if any, described in the Terms Agreement and
the capital stock of the Company, if any issuable upon
conversion of such Debt Securities, will conform to the
descriptions thereof contained in the Registration Statement
and the Prospectus.
(k) Except as described in the Prospectus, there is
no litigation or governmental proceeding to which the
Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is
subject or which is pending or, to the knowledge of the
Company, contemplated against the Company or any of its
subsidiaries which would reasonably be expected to result in
any material adverse change or any development involving a
prospective material adverse change in the business,
prospects, properties, operations, condition (financial or
other) or net worth or results of operations of the Company
and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement and the
Prospectus; and to the actual knowledge of the Company, no
such proceedings are threatened by governmental authorities
or by others.
(l) The Company has not taken and will not take,
directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be
expected to constitute, the stabilization or manipulation of
the price of the Securities to facilitate the sale or resale
of the Securities.
(m) The financial statements, including the notes
thereto, and supporting schedules included in the
Registration Statement and the Prospectus present fairly the
financial position of the Company as of the dates indicated
and the results of its operations for the periods specified;
except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included in the Registration Statement and Prospectus
present fairly the information required to be stated
therein.
(n) Except as described in the Prospectus, no holder
of securities of the Company has any rights to the
registration of securities of the Company because of the
filing of the Registration Statement or otherwise in
connection with the sale of the Securities contemplated in
the Terms Agreement. Immediately after the sale of the
Securities by the Company under the Terms Agreement, the
aggregate amount of Securities which shall have been issued
and sold by the Company under the Terms Agreement and of any
other securities of the Company (other than the Securities)
that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of
securities registered under the Registration Statement.
(q) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission under the Exchange Act, and,
when read together with the other information in the
Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date,
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, in the light of
the circumstances under which they were made, not
misleading.
(r) Neither the Company nor any of its subsidiaries
nor, to the Company's knowledge, any other party, is now, or
is reasonably expected by the Company or any of its
subsidiaries to be, (i) in violation or breach of, or
default (disregarding any grace or notice provision) with
respect to any material provision of any contract,
agreement, instrument, lease, license, policy, arrangement,
or understanding to which the Company or any of its
subsidiaries is a party, or (ii) in violation of any law,
ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise
or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its
business, which violation, breach or default or violations,
breaches or defaults, in the case of clause (i) or (ii),
singly or in the aggregate has, or would reasonably be
expected in the future to have, a material adverse effect on
the business, prospects, properties, assets, operations,
condition (financial or other), net worth or results of
operations of the Company and its subsidiaries taken as a
whole; and each such contract, agreement, instrument, lease,
license, policy, arrangement and understanding is in full
force and effect and is the legal, valid and binding
obligation of the Company or its subsidiaries, as the case
may be, and to the Company's knowledge, the other parties
thereto, and is enforceable as to the Company or its
subsidiaries, as the case may be, and to the Company's
knowledge, the other parties thereto in accordance with its
terms subject, as to enforceability, to applicable
bankruptcy, reorganization, moratorium or other similar laws
of general application affecting the rights of creditors
generally, except where such failure to be in full force and
effect or to be a legal, valid and binding obligation or to
be enforceable, as the case may be, has not had, or would
not reasonably be expected in the future to have, a material
adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net
worth or results of operations of the Company and its
subsidiaries taken as a whole.
(s) The Company has no reason to believe that the
Company and each of its subsidiaries do not own or possess
adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their
respective businesses in the manner described in the
Prospectus and have no reason to believe that the conduct of
their respective businesses will conflict with any such
rights of others.
(t) There are no contracts or other documents which
are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been filed as exhibits to the
Registration Statement.
(u) Except as described in the Prospectus, since the
date as of which information is given in the Prospectus, the
Company has not (i) issued or granted any rights to acquire
any securities (other than pursuant to employee benefit
plans or other compensation plans existing on the date of
the Terms Agreement) or (ii) declared or paid any dividend
on its capital stock other than regular quarterly cash
dividends.
(v) Neither the Company, nor any of its subsidiaries,
is, nor upon consummation of the transactions contemplated
hereby will be, required to register as, or be subject to
regulation as, an "investment company" under the Investment
Company Act of 1940.
(w) The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
3. PURCHASE AND OFFERING OF THE SECURITIES BY THE
UNDERWRITERS. The obligation of the Underwriters to purchase the
Securities will be evidenced by an exchange of written
communications (including, without limitation, facsimile
transmissions) ("Terms Agreement") at each time the Company
determines to sell the Securities. Unless otherwise agreed by
the parties thereto, each Terms Agreement will be in the form of
Annex II(A) or (B) attached hereto and will incorporate by
reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will
be Underwriters, the names of any Representatives, the amount to
be purchased by each Underwriter, the purchase price to be paid
by the Underwriters and certain terms of the Securities and
whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date
of delivery and payment (such time and date being herein and in
the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of any
public offering that should be reflected in the Prospectus
Supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will
be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the
Prospectus. Debt Securities, if any, delivered to the
Underwriters on the Closing Date will be in definitive fully
registered form, in such denominations and registered in such
names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants contained in this
Agreement, and subject to the terms and conditions set forth in
this Agreement, the Company grants an option to the several
Underwriters to purchase, severally and not jointly, up to that
amount of the Option Securities as shall be specified in the
Terms Agreement from the Company at the same price as the
Underwriters shall pay for the Securities which the Underwriters
are committed to purchase on the Closing Date (the "Firm
Securities"). Said option may be exercised only to cover
over-allotments in the sale of the Firm Securities by the
Underwriters and may be exercised in whole or in part at any time
and from time to time on or before the thirtieth day after the
date of the Terms Agreement upon written or telegraphic notice by
the Representatives to the Company setting forth the amount of
the Option Securities as to which the several Underwriters are
exercising the option. The amount of Option Securities to be
purchased by each Underwriter in connection with each exercise of
such option shall be the same percentage of the total amount of
the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Firm Securities, as
adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes
the Underwriters to solicit offers to purchase Securities
pursuant to delayed delivery contracts substantially in the form
of Annex I attached hereto ("Delayed Delivery Contracts") with
such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional
investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date, the Company
will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms
Agreement in respect of the amount of Securities to be sold
pursuant to Delayed Delivery Contracts ("Contract Securities").
The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts,
the Contract Securities will be deducted from the Securities to
be purchased by the several Underwriters and the aggregate amount
of Securities to be purchased by each Underwriter will be reduced
pro rata in proportion to the amount of Securities set forth
opposite each Underwriter's name in such Terms Agreement, except
to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the
Company. The Company will advise the Representatives not later
than the business day prior to the Closing Date of the amount of
Contract Securities.
4. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Underwriters as follows:
(a) The Company agrees: (i) to prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus, including the Prospectus Supplement, pursuant to Rule
424(b) within the time period prescribed by the Rules and
Regulations; (ii) to notify the Representatives, promptly after
it receives notice, of the time when the Registration Statement
or any amendment thereto becomes effective or promptly after the
filing of any supplement or amendment to the Prospectus (other
than any Incorporated Document or any amendment or supplement
relating to an offering of securities other than the Securities)
and to furnish the Representatives with copies thereof; (iii) to
notify the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the 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 the Registration Statement or the
Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal; and (iv) not to file
any amendment to the Registration Statement or any amendment of
or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b)) that differs from
the prospectus on file at the time of the effectiveness of the
Registration Statement or file any document under the Exchange
Act if such document would be deemed to be incorporated by
reference into the Prospectus to which the Representatives shall
reasonably object in writing after being timely furnished in
advance a copy thereof.
(b) If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act
any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would, in the judgment of the
Underwriters or the Company include an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply
with the Securities Act or the Rules and Regulations, or to file
under the Exchange Act, so as to comply with the Exchange Act or
the Securities Act, any document incorporated by reference in the
Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto, the Company will notify the
Representatives promptly and prepare and file with the Commission
an appropriate amendment or supplement (in form and substance
satisfactory to the Representatives) which will correct such
misstatement or omission or which will effect such compliance and
will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the
Representatives two signed copies of the Registration Statement,
including exhibits and all documents incorporated by reference
therein and all amendments thereto, and the Company will promptly
deliver to each of the Underwriters such number of copies of any
preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such
documents, if any, and all documents incorporated by reference in
the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, without exhibits, as the
Representatives may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with the Representatives, at or prior to the time of
effectiveness of the Registration Statement, to qualify the
Securities for offering and sale under the securities laws of
such jurisdictions as the Representatives may designate and to
maintain such qualification in effect for so long as required for
the distribution thereof; except that in no event shall the
Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process.
(e) As soon as practicable but no later than 16 months
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earning statement
of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158) covering a period of at
least twelve months beginning on the first day of the first
fiscal quarter of the Company commencing after the later of (i)
the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such Terms Agreement or (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement.
(f) For the period specified in the Terms Agreement,
the Company will not, (A) in the event of an offering of common
stock, preferred stock or convertible debt securities, (i) offer
for sale, sell or otherwise dispose of, directly or indirectly,
any shares of common stock of the Company or permit the
registration under the Securities Act of any shares of common
stock of the Company (other than the Securities and shares issued
pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans), (ii) sell or grant
options, rights or warrants with respect to any shares of common
stock of the Company (other than the Securities and the grant of
options pursuant to employee benefit plans), or (iii) offer for
sale, sell or otherwise dispose of, directly or indirectly, any
securities convertible into or, exchangeable or exercisable for
common stock of the Company (other than the Securities), without,
in any case, the prior written consent of the Representatives;
and, (B) in the event of an offering of Debt Securities, between
the date of the Terms Agreement and the date of delivery of the
Debt Securities, offer for sale, sell or cause to be offered for
sale or sold, without the prior written consent of the
Representatives, any debt securities which are substantially
similar to the Securities.
(g) During the period, if any, specified in the Terms
Agreement after the date of such Terms Agreement, the Company
will furnish to the Representatives copies of (i) all reports to
its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the
Commission or any national securities exchange.
(h) The Company will apply the proceeds from the sale
of the Securities as set forth under "Use of Proceeds" in the
Prospectus.
(i) If the Securities include shares of common stock or
securities convertible into shares of common stock, the Company
will cause such shares to be listed on the New York Stock
Exchange.
(k) The Company, during the period when the Prospectus
is required to be delivered under the Securities Act or the
Exchange Act, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act and the
rules and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the
transactions contemplated by any Terms Agreement are consummated
or such Terms Agreement is terminated, the Company hereby agrees
to pay all costs and expenses incident to the performance of the
obligations of the Company under such Terms Agreement (including
the provisions of this Agreement incorporated therein), including
without limitation, (i) costs and expenses of preparing,
printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof
(including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments or supplements thereto (including,
without limitation, fees and expenses of the Company's
accountants and counsel), any Incorporated Documents and any
amendments or supplements thereto the underwriting documents
(including this Agreement, and any Agreement Among Underwriters
and Selling Agreement) and all other documents related to the
public offering of the Securities (including those supplied to
the Underwriters in quantities as hereinabove stated); (ii) costs
and expenses in connection with the issuance, transfer and
delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon; (iii) costs and expenses
in connection with the qualification of the Securities under
state or foreign securities or Blue Sky laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey"
and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto; (iv) fees and expenses in
connection with listing shares of common stock, and other
Securities, if any, on the New York Stock Exchange or other
securities exchange, as the case may be; (v) filing fees of the
Commission and the National Association of Securities Dealers,
Inc. (the "NASD"), if any; (vi) the cost of printing certificates
representing the Securities; (vii) the fees paid to rating
agencies in connection with the rating of the Securities; (viii)
the reasonable fees and disbursements of the Trustee and any
transfer agent and their respective counsel; and (ix) all other
reasonable costs and expenses incident to the performance of the
obligations of the Company under the Terms Agreement (including
the provisions of this Agreement).
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the
Securities as provided herein, shall be subject to the accuracy
of the representations and warranties of the Company herein
contained, as of the date of the applicable Terms Agreement and
as of the Closing Date (for purposes of this Section 6 "Closing
Date" shall refer to the Closing Date for the Firm Securities and
the date of delivery, if different, for any Option Securities, to
the absence from any certificates, opinions, written statements
or letters furnished to the Representatives or to Simpson Thacher
& Bartlett (a partnership which includes professional
corporations) ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission to state a material fact, to
the performance by the Company of its obligations hereunder, and
to the following additional conditions:
(a) The Prospectus as amended or supplemented shall
have been filed with the Commission pursuant to Rule 424(b) under
the Securities Act within the applicable time period prescribed
for such filing by the Rules and Regulations and in accordance
with Section 4(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have
been complied with. No Underwriter shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which,
in the opinion of Underwriters' Counsel is material or omits to
state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(b) At the Closing Date, the Representatives shall have
received the opinion of Kilpatrick Stockton LLP, counsel for the
Company,<F1> dated the Closing Date addressed to the Underwriters
and in form and substance satisfactory to Underwriters' Counsel,
to the effect that:
[FN]
<F1> Where appropriate, opinions may be divided between Kilpatrick
Stockton LLP and Bruce S. Richards, Esq., Corporate Vice
President and General Counsel.
</FN>
(i) Each of the Company and its subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes
such qualification necessary, except for those failures to
be so qualified or in good standing which would not in the
aggregate be reasonably expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has the corporate
power to own, lease and license its respective properties
and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus.
All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable
and were not issued in violation of or subject to any
preemptive rights, and are owned directly or indirectly by
the Company, free and clear of any lien, encumbrance, claim,
security interest, restriction on transfer, shareholders'
agreement, voting trust or other defect of title whatsoever.
(ii) The authorized and outstanding capital stock of
the Company is as set forth in the Registration Statement
and the Prospectus. All of the outstanding shares of
capital stock of the Company are duly and validly authorized
and issued, fully paid and nonassessable and were not issued
in violation of or subject to any preemptive rights.
(iii) The shares of common stock and preferred stock,
if any, of the Company described in the Terms Agreement have
been duly authorized by the Company and, when issued and
paid for pursuant to the Terms Agreement, will be duly and
validly issued, fully paid and non-assessable and will not
have been issued in violation of or be subject to any
preemptive rights.
(iv) The Indenture, if any, described in the Terms
Agreement has been duly authorized, executed and delivered
by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee under the
Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company
in accordance with its terms.
(v) The Debt Securities, if any, described in the
Terms Agreement have been duly authorized by the Company
and, when the terms of the Debt Securities and of their
issuance and sale have been duly established in accordance
with the Indenture, this Agreement and the Terms Agreement,
and the Debt Securities have been duly executed,
authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with this
Agreement and the Terms Agreement, the Debt Securities will
be duly and validly issued and delivered by the Company and
will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
if any Securities to be issued are convertible, the shares
of common stock issuable upon conversion thereof have been
duly authorized by the Company, have been duly reserved for
issuance upon conversion of the Securities and, when issued
upon the conversion of the Securities, will be duly and
validly issued, fully paid and non-assessable and will not
have been issued in violation of or subject to any
preemptive rights.
(vi) The Securities, other than any Contract
Securities, the Indenture and the capital stock of the
Company conform, and any Contract Securities, when issued,
delivered and sold, will conform, in all material respects
to the descriptions thereof contained or incorporated by
reference in the Registration Statement and the Prospectus;
and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing
Date) summarized in the Prospectus, any supplement thereto
or any document incorporated by reference therein, conform
in all material respects to the descriptions thereof in the
Prospectus, any supplement thereto or any document
incorporated by reference therein;
(vii) The Company has the corporate power to execute,
deliver and perform its obligations under the Terms
Agreement, this Agreement and any Delayed Delivery Contracts
and to consummate the transactions contemplated hereby and
thereby, and the Terms Agreement, this Agreement and any
Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(viii) There is no litigation or governmental
proceeding to which the Company or any of its subsidiaries
is a party, or to which any property of the Company or any
of its subsidiaries is subject, which is pending or, to the
best of such counsel's knowledge, threatened against the
Company or any of its subsidiaries, which is of a character
required to be disclosed in the Registration Statement and
the Prospectus which has not been properly disclosed
therein.
(ix) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
by the Company and the consummation of the transactions
contemplated hereby and thereby and compliance by the
Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities,
including the issuance, sale and delivery of the Securities
to be issued, sold and delivered by the Company on the
Closing Date, do not and will not (i) conflict with or
result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any agreement,
instrument, franchise, license or permit known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
any of their respective properties or assets may be bound or
(ii) violate or conflict with any provision of the articles
of incorporation or by-laws of the Company or any of its
subsidiaries or any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
respective properties or assets.
(x) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or
assets is required for the execution, delivery and
performance of the Terms Agreement (including the provisions
of this Agreement) by the Company and the consummation of
the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement and the
Securities, including the issuance, sale and delivery of the
Securities to be issued, sold and delivered by the Company
on the Closing Date, except the registration under the Act
of the Securities and such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required
under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the
Underwriters.
(xi) To the best of such counsel's knowledge, neither
the Company nor any of its subsidiaries is (i) in violation
or breach of, or default (disregarding any grace or notice
provision) with respect to any material provision of any
contract, agreement, instrument, lease, license or permit
known to such counsel to which the Company or any of its
subsidiaries is a party, or (ii) in violation of any law,
ordinance, governmental rule, regulation or court decree to
which the Company or any of its subsidiaries or their
respective properties or assets may be subject, which
violations, breaches or defaults, in the case of clause (i)
or (ii), singly or in the aggregate, have or can reasonably
be expected in the future to have, a material adverse effect
on the business, prospects, properties, assets, operations,
condition (financial or other) or results of operations of
the Company and its subsidiaries taken as a whole.
(xii) At the Effective Time, the Registration
Statement (including all documents incorporated by reference
therein) complied, and on the date of the Terms Agreement,
the Prospectus (including all documents incorporated by
reference therein) complies, and any further amendments or
supplements thereto made by the Company on or prior to the
date of such opinion comply (other than, in each case, the
financial statements and related schedules and other
financial and statistical data included or incorporated by
reference therein and the Form T-1 under the Trust Indenture
Act, as to which such counsel need express no opinion) as to
form in all material respects with the requirements of the
Securities Act, the Exchange Act and the applicable rules
and regulations under said Acts.
(xiii) To such counsel's knowledge, there are no
contracts or other documents which are required to be filed
as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been so
filed.
(xiv) The Registration Statement is effective under
the Securities Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have
been initiated or threatened by the Commission and all
filings required by Rule 424(b) of the Rules and Regulations
have been made.
(xv) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the
Registration Statement, or, except as described in the
Prospectus or Schedule B to the Terms Agreement, to require
the Company to file any other registration statement under
the Securities Act (other than a registration statement on
Form S-8) with respect to any securities of the Company
owned or to be owned by such person or to require the
Company to include such securities in any securities being
registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(xvi Neither the Company, nor any of its subsidiaries,
is, nor upon consummation of the transactions contemplated
hereby will be, required to be registered as, or subject to
regulation as, an "investment company" under the Investment
Company Act of 1940, as amended.
In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with
officers and representatives of the Company, representatives of
Arthur Andersen LLP, the Underwriters and Underwriters' Counsel
at which the contents of the Registration Statement and the
Prospectus and related matters were discussed, and no facts have
come to the attention of such counsel which would lead such
counsel to believe that either the Registration Statement, as of
the Effective Time, or, if later, as of the date of the Company's
most recent filing of an Annual Report on Form 10-K (including
such Annual Report on Form 10-K), contained or any amendment
thereof made prior to the Closing Date, as of the date of such
amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date, as of the date
of such amendment or supplement) and as of the Closing Date,
contained or contains an untrue statement of a material fact or
omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it
being understood that such counsel need express no belief or
opinion with respect to the financial statements and schedules
and other financial or statistical data included or incorporated
by reference therein).
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws other than the laws
of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to
Underwriters' Counsel, familiar with the applicable laws; (B) as
to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and
certificates or other written statements of officers of
departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the
Company and its subsidiaries, provided that copies of any such
statements or certificates shall be delivered to Underwriters'
Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form
satisfactory to such counsel and, in the opinion of such counsel
to the Company, the Representatives and they are justified in
relying thereon. Counsel for the Company may also state that
their opinions set forth in subparagraphs (iv) and (v) above are
subject to the qualification that the enforceability of the
Company's obligations under the Indenture and the Securities may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or by an implied covenant of good faith and fair dealing.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Terms Agreement, the Indenture, if any, described
in the Terms Agreement, the Securities, the Registration
Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the
transactions contemplated hereby and thereby shall be
satisfactory in all material respects to the Representatives and
Underwriters' Counsel; and the Underwriters shall have received
from said Underwriters' Counsel a favorable opinion, dated as of
the Closing Date with respect to the issuance and sale of the
Securities, the Registration Statement and the Prospectus and
such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) At the Closing Date, the Representatives shall
have received a certificate of the [Chief Financial Officer] and
the [________] of the Company, dated the Closing Date to the
effect that (i) the conditions set forth in subsection (a) of
this Section 6 have been satisfied, (ii) as of the date hereof
and as of the Closing Date, the representations and warranties of
the Company set forth in this Agreement are true and correct in
all material respects, (iii) as of the Closing Date, all
obligations and conditions to be performed or complied with by
the Company on or prior thereto have been duly performed or
complied with in all material respects, (iv) they have examined
the Registration Statement and the Prospectus and, in their
opinion, (A) as of the Effective Date, the Registration Statement
did not contain an untrue statement of a material fact and did
not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and,
as of the date of such certificate, the Prospectus does not
include 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, not
misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or
amendment to the Registration Statement or Prospectus which has
not been set forth in such a supplement or amendment, and (v)
subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the
Company or its subsidiaries have not sustained any material loss
or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been a
material adverse change or a development involving a prospective
material adverse change in the business, prospects, properties,
operations, condition (financial or other), net worth or results
of operations of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except in each case as described in or
contemplated by the Prospectus.
(e) At the time this Agreement is executed and at the
Closing Date, the Representatives shall have received a letter
from Arthur Andersen LLP, independent public accountants for the
Company, dated, respectively, as of the date of the Terms
Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to the
Representatives, in each case of the type described in the
American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 72, and covering such additional financial
statement items and procedures (including a review of interim
financial statements specified in the American Institute of
Certified Public Accountants' Statement on Auditing Standards
No. 71) as the Representatives may reasonably request, and each
such letter shall further state:
(i) whether, with respect to the period subsequent to
the date of the most recent consolidated balance sheet of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
there have been, as of the date of the most recent available
monthly consolidated financial statements of the Company and
its subsidiaries, if any, and as of a specified date not
more than five days prior to the date of such letter, any
changes in the capital stock or consolidated long-term
indebtedness of the Company or any decrease in the
consolidated net current assets or stockholders' equity of
the Company, in each case as compared with the amounts shown
in the most recent balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus,
except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may
occur or which are set forth in such letter or during the
period from the date of the most recent consolidated balance
sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus to the date of the most recent available
monthly consolidated financial statements of the Company and
its subsidiaries, if any, and to a specified date not more
than five days prior to the date of such letter, there were
any decreases, as compared with the corresponding period in
the preceding fiscal year, in total revenues, or in total or
per share net income, except for decreases which the
Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter;
and
(ii) their conclusions with respect to specific dollar
amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the
Company and its subsidiaries set forth or incorporated by
reference in the Registration Statement and the Prospectus,
which have been specified by the Representatives prior to
the date of the Terms Agreement.
(f) Prior to the Closing Date the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(h) At the Closing Date, any shares of common stock
included in or issuable upon conversion of the Securities shall
have been approved for listing on the New York Stock Exchange
upon notice of issuance.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as required by this
Agreement, or if any of the certificates, opinions, written
statements or letters furnished to the Representatives or to
Underwriters' Counsel pursuant to this Section 6 shall not be in
all material respects reasonably satisfactory in form and
substance to the Representatives and to Underwriters' Counsel,
all obligations of the Underwriters hereunder may be cancelled by
the Representatives at, or at any time prior to, the Closing Date
and the obligations of the Underwriters to purchase the Option
Securities may be cancelled by the Representatives at, or at any
time prior to, the agreed upon date of delivery thereof. Notice
of such cancellation shall be given to the Company in writing, or
by telephone, telex or telegraph, confirmed in writing.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to Underwriters'
Counsel.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of
any claim or litigation), joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in
any supplement thereto or amendment thereof, 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; provided, however,
that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any
Preliminary Prospectus or the Prospectus or in any such
supplement or amendment in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Underwriter through the Representatives expressly for use
therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, including under
this Agreement.
(b) Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless the Company, each of the
directors of the Company, each of the officers of the Company who
shall have signed the Registration Statement, and each other
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly
or several, to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment thereof 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 any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
in the Registration Statement, any Preliminary Prospectus or the
Prospectus or in any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives expressly for use therein; provided, however,
that in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable
to the Securities purchased by such Underwriter under the Terms
Agreement. This indemnity will be in addition to any liability
which any Underwriter may otherwise have, including under this
Agreement.
(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 each party against whom
indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall
not relieve it from any liability which it may have under this
Section 7). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such
indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have
been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying
parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees
and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any
claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in
circumstances in which the indemnification provided for in this
Section 7 is for any reason held to be unavailable from any
indemnifying party or is insufficient to hold harmless a party
indemnified thereunder, each indemnifying party shall contribute
to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but
after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution
received by the Company from persons, other than the
Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act,
officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and
one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Securities or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in
this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the
relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company and of the Underwriters 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 or the Underwriters 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 Section 7(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. Notwithstanding the provisions of this
Section 7(d), (i) in no case shall the liability or
responsibility of any Underwriter to indemnify or contribute
under this Section 7 exceed the lesser of (x) the underwriting
discount or commission applicable to the Securities purchased by
such Underwriter under the Terms Agreement, or (y) the amount by
which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7(d),
each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each
director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i)
and (ii) of this Section 7(d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may
have under this Section 7(d) or otherwise. No party shall be
liable for contribution with respect to any action or claim
settled without its consent; provided, however that such consent
was not unreasonably withheld.
(e) The Underwriters severally confirm that the
statements with respect to the public offering of the Securities
set forth on the cover page of, and under the caption
"Underwriting" in, the Prospectus are correct and constitute the
only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
(f) The agreements contained in Sections 4(e), 4(g), 5
and this Section 7 and the representations and warranties of the
Company in Section 2 (as made as of the date of the Terms
Agreement incorporating this Agreement) shall survive the
delivery of the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of the
Terms Agreement incorporating the terms of this Agreement or any
investigation made by or on behalf of any indemnified party.
8. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Securities under the Terms
Agreement, and if the Securities with respect to which such
default relates do not (after giving effect to arrangements, if
any, made by the Representatives pursuant to subsection (b)
below) exceed in the aggregate 10% of the number of shares or
aggregate principal amount, as the case may be, of the Firm
Securities or Option Securities, as the case may be, then the
Firm Securities or Option Securities, as the case may be, to
which the default relates shall be purchased by the
non-defaulting Underwriters in the respective proportions which
the number of shares or principal amount of Firm Securities set
forth opposite their respective names in the schedule attached to
the Terms Agreement bears to the aggregate number of shares or
aggregate principal amount of Firm Securities set forth opposite
the names of all non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the aggregate number of shares or aggregate principal
amount, as the case may be, of Firm Securities or Option
Securities, as the case may be, the Representatives may in their
discretion arrange for the Underwriters or for another party or
parties (including any non-defaulting Underwriter or Underwriters
who so agree) to purchase such Firm Securities or Option
Securities to which such default relates on the terms contained
herein. In the event that within 5 calendar days after such a
default the Representatives do not arrange for the purchase of
the Firm Securities or Option Securities, as the case may be, to
which such default relates as provided in this Section 8, the
Terms Agreement or, in the case of a default with respect to the
Option Securities, the obligations of the Underwriters to
purchase and of the Company to sell the Option Securities shall
thereupon terminate, without liability on the part of the Company
with respect thereto (except in each case as provided in Sections
5, 7(a), 7(c) and 7(d) hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that the Firm Securities or Option
Securities to which the default relates are to be purchased by
the non-defaulting Underwriters, or are to be purchased by
another party or parties as aforesaid, the Representatives or the
Company shall have the right to postpone the Closing Date or date
of delivery of the Option Securities, as the case may be, for a
period, not exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file
promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of
Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in the Terms Agreement
(including this Agreement) shall include any party substituted
under this Section 8 with like effect as if it had originally
been a party to the Terms Agreement with respect to such Firm
Securities or Option Securities.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements of the
Underwriters and the Company contained in the Terms Agreement
(including this Agreement), including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and
the contribution agreements contained in Section 7, shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any
of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Securities and
any Option Securities to and by the Underwriters. The
representations contained in Section and the agreements
contained in Sections 4(e), 4(g), 5, 7, and 10(c) hereof shall
survive the termination of this Agreement, including termination
pursuant to Section 8 or 10 hereof.
10. EFFECTIVE DATE AND TERMINATION. (a) The
Representatives shall have the right to terminate the Terms
Agreement at any time prior to the Closing Date or the
obligations of the Underwriters to purchase the Option Securities
at any time prior to the agreed upon date of delivery thereof, as
the case may be:
(i) if, subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company or its subsidiaries shall have
sustained any material loss or interference with their
respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal
or governmental proceeding, or there shall have been a
material adverse change or a development involving a
prospective material adverse change in the business,
prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except in
each case as described in or contemplated by the Prospectus;
(ii) if (A) any domestic or international event or act
or occurrence shall have materially disrupted, or in the
opinion of the Representatives will in the immediate future
materially disrupt, the market for the Company's securities
or securities in general; or (B) trading on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ
National Market System shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been
required, on either such Exchange or the NASDAQ National
Market System by either such exchange, by the NASD or by
order of the Commission or any other governmental authority
having jurisdiction; or (C) a banking moratorium shall have
been declared by a state or federal authority or any new
restriction materially adversely affecting the distribution
of the Securities or the Option Securities shall have become
effective; or
(iii) if (A) any downgrading in the rating of the
Company's debt securities or preferred stock by any
"nationally recognized statistical rating-organization" (as
defined for purposes of Rule 436(g) under the Securities
Act) shall occur, or (B) any such organization shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of
the Company's debt securities or preferred stock; or
(iv) if (A) the United States shall become engaged in
hostilities or there shall be an escalation of hostilities
involving the United States or there shall be a declaration
of a national emergency or war by the United States or (B)
there shall have been a change in political, financial or
economic conditions, and the effect of any such event in (A)
or (B) is such as to make it in the sole judgment of the
Representatives impracticable or inadvisable to proceed with
the offering, sale and delivery of the Securities or the
Option Securities on the terms contemplated by the
Prospectus.
(b) Any notice of termination pursuant to this Section
10 shall be by hand delivery, telephone (confirmed in writing) or
facsimile transmission.
(c) If the Terms Agreement shall be terminated
pursuant to any of the provisions thereof or hereof (otherwise
than pursuant to Section 8(b) hereof), or if the sale of the
Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein
is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or
comply with any provision hereof, the Company will, upon demand
by the Representatives, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of the
Underwriters' Counsel), incurred by the Underwriters in
connection herewith.
11. NOTICES, ETC. All communications hereunder,
except as may be otherwise specifically provided herein, shall be
in writing and, if sent to any Underwriter, shall be hand
delivered, or sent by facsimile transmission, to such
Underwriter, in care of the Representatives at the address
specified in the Terms Agreement; if sent to the Company, shall
be hand delivered or sent by facsimile transmission to the
Company, 1600 Peachtree Street, N.W., Atlanta, Georgia 30309,
Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) shall be given to such
Underwriter at its address set forth in its acceptance to the
Representatives, which address will be supplied to any other
party hereto by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect at
the time of receipt thereof.
12. PARTIES. The Terms Agreement (including the
provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their
respective successors. The Terms Agreement (including the
provisions of this Agreement) are for the sole benefit of only
those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company contained in this
Agreement also shall be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act and (B) the indemnity agreement of the
Underwriters contained in Section 7(b) of this Agreement shall be
deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration
Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred
to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
contained in this Agreement. No purchaser of Securities from any
Underwriter shall be deemed to be a successor solely by reason of
such purchase.
13. GOVERNING LAW. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with
the laws of the State of New York, but without regard to
principles of conflicts of law.
14. DEFINITION OF THE TERM "BUSINESS DAY". For
purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange is open for trading.
15. COUNTERPARTS. The Terms Agreement may be executed
in counterparts and each such counterpart shall be deemed to be
an original but all such counterparts shall together constitute
one and the same instrument.
16. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later
than 9:00 A.M., New York time, on ________, 19_**.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
EQUIFAX INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from EQUIFAX
INC., a Georgia corporation ("Company"), and the Company agrees
to sell to the undersigned. [If one delayed closing, insert --
as of the date hereof, for delivery on ________, 19__ ("Delivery
Date").]
[$]________
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated
________, 19__ and a Prospectus Supplement dated ________, 19__,
relating thereto, receipt of copies of which is hereby
acknowledged, at ____% of the principal amount thereof plus
accrued interest from ________, 19__, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of
the date hereof, for delivery on the dates set forth below.
Securities in the principal amounts set forth below:
Delivery Date Principal Amount
__________________ [$]____________
__________________ [$]____________
**/ Insert date which is third full business day prior to
Closing Date under the Terms Agreement.
<PAGE>
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has
agreed to purchase for delivery on [the] [each] Delivery Date
shall be made to the Company or its order by certified or
official bank check in [New York Clearing House (next day)] funds
at the office of ________ at 10:00 A.M. on the Delivery Date upon
delivery to the undersigned of the Securities to be purchased by
the undersigned for delivery on such Delivery Date in definitive
fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to be
regarded in all respects as a purchase as of the date of this
Contract; that the obligation of the Company to make delivery of
and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the] [each]
Delivery Date shall be subject only to the conditions that (1)
investment in the Securities shall not at such Delivery Date be
prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this
and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the
Underwriters the Company will mail or deliver to the undersigned
at its address set forth below, notice to such effect,
accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
<PAGE>
3
It is understood that the acceptance of any such
Contract is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
contract between the Company and the undersigned when such
counterpart is so mailed or delivered.
Yours very truly,
______________________________
(Name of purchaser)
By,___________________________
(Title of Signatory)
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date,
EQUIFAX INC.
By_________________________________
Name:
Title:
<PAGE>
ANNEX II (A)
EQUIFAX INC.
("Company")
Debt Securities
TERMS AGREEMENT
, 19__
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to
purchase, on and subject to the terms and conditions of the
Underwriting Agreement Basic Provisions of the Company attached
hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated _________,
19__, between the Company and ____________, as Trustee, on the
following terms:
Title: [ %] [Floating Rate] [Senior] ]Subordinated] [Notes]
[Debentures]
Due __
Principal Amount: [$]
Interest: [ % per annum, from ____, 19__, payable semiannually on
___________ and commencing ________________, 19__, to holders of
record on the preceding ______ or _______ , as the case may be.]
[Zero coupon]
MATURITY: _________, 19__.
OPTIONAL REDEMPTION:
SINKING FUND:
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: __ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: __ days.
[CONVERSION PROVISIONS]:
[Other Terms]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall
be __________, 19__. Underwriters' fee is __% of the principal
amount of the Contract Securities.]
PURCHASE PRICE: _% of principal amount, plus accrued
interest [, if any,] from __________, 19__.
EXPECTED REOFFERING PRICE: _% of principal amount, subject
to change by the undersigned.
<PAGE>
2
CLOSING DATE: ________ A.M. on _________, 19__, at
___________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite
their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and
reduce the aggregate principal amount to be purchased by the
Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional
Underwriters.]
The significant subsidiaries (as defined in Rule 405 under
the Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are
incorporated herein by reference [IF APPROPRIATE. INSERT--,
except that the obligations and agreements set forth in Section 8
("Defaulting Underwriters") of the Underwriting Agreement shall
not apply to the obligations of the Underwriters to purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of ______________ at least 24 hours prior
to the Closing Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to
us.]
<PAGE>
3
[Please signify your acceptance of the foregoing by return
wire not later than ___________P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By___________________________
Name:
Title:
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
$____________
_________
Total . . . . . . . . . . . . . . . . . . . [$]
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated ____________, 19__, relating to [$]___________ principal
amount of our [Insert title of Securities] (the "Terms
Agreement"). We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and
warranties of the undersigned contained in Section 2 of the
Underwriting Agreement Basic Provisions of the Company referred
to in the Terms Agreement (together with the Terms Agreement, the
"Underwriting Agreement"), are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been (or in the case of
a form of prospectus filed pursuant to Rule 424(b)(2) or (5)
there will be, as of the date of such prospectus) no
material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except
as set forth in or contemplated by the Prospectus.
Very truly yours,
EQUIFAX INC.
By________________
Name:
Title:
<PAGE>
ANNEX 11 (B)
EQUIFAX INC.
("Company")
Equity Securities
TERMS AGREEMENT
, 19__
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to
purchase, on and subject to the terms and conditions of the
Underwriting Agreement Basic Provisions of the Company attached
hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
TITLE: [Common Stock] [Preferred Stock, Series _______]
NUMBER OF SHARES TO BE ISSUED: [____ shares]
[For Preferred Stock:
VOTING RIGHTS:
PREFERRED STOCK DIVIDENDS: [cash dividends of $ to $ per
share payable quarterly in arrears on _______ __, ______ __,
______ __ and ______ __.]
OPTIONAL REDEMPTION:
MANDATORY REDEMPTION/SINKING FUND:
LIQUIDATION PREFERENCE: [$___ per share plus ______].
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange]
[NASDAQ National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: ___ days.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: ___ days.
[CONVERSION PROVISIONS]:
[Other Terms]
PRICE TO PUBLIC: $____ per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
<PAGE>
2
OVER-ALLOTMENT OPTION:
CLOSING DATE: _______ A.M. on _______, 19__. at ________ in
New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
[FOR COMMON STOCK:
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange]
[NASDAQ National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE
UNDERWRITING AGREEMENT: __ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE
UNDERWRITING AGREEMENT: __ days.
[Other Terms]
PRICE TO PUBLIC: $________per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE:_________ A.M. on ___________, 19__, at
______________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
The respective shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and
reduce the number of shares to be purchased by the Underwriters
listed in Schedule A hereto by the number of shares to be
purchased by such additional Underwriters.]
The significant subsidiaries (as defined in Rule 405
under the Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are
incorporated herein by reference [IF APPROPRIATE, INSERT--,
except that the obligations and agreements set forth in Section 8
("Defaulting Underwriters") of the Underwriting Agreement shall
not apply to the obligations of the Underwriters to purchase the
above Securities].
<PAGE>
3
The Securities will be made available for checking and
packaging at the office of ____________ at least 24 hours prior
to the Closing Date.
<PAGE>
4
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours.
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By__________________________
Name:
Title:
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
_______
Total . . . . . . . . . . . . . . . . . . .
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated ____, 19 , relating to _____________ shares of our [Insert
title of Securities] (the "Terms Agreement"). We also confirm
that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the
undersigned contained in Section 2 of the Underwriting Agreement
Basic Provisions of the Company referred to in the Terms
Agreement (together with the Terms Agreement, the "Underwriting
Agreement"), are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the
Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to
the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the
Prospectus (as defined in the Underwriting Agreement), there has
been (or in the case of a form of prospectus filed pursuant to
Rule 424(b)(2) or (5) there will be, as of the date of such
prospectus) no material adverse change in the financial position
or results of operations of the undersigned and its subsidiaries
except as set forth in or contemplated by the Prospectus.
Very truly yours.
EQUIFAX INC.
By ______________________
Name:
Title:
<PAGE>
(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, 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 and (ii) since such date there shall not have
been any material change in the capital stock or long-term
debt of the Company or any of its subsidiaries (otherwise
than as set forth or contemplated in the Prospectus or in a
supplement thereto) or any change in or affecting, or any
adverse development which affects, the business, properties,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus, 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 Securities being delivered
on the Closing Date on the terms and in the manner
contemplated herein or in the Prospectus or in a supplement
thereto.
Subsequent to the execution and delivery of the
Terms Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New
York Stock Exchange, Inc. (the "NYSE"), the American Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred a
material adverse change in general economic, political or
financial conditions the result of which, in the case of
each of clauses (i)-(iv), makes it (or, in the case of
clause (iv), the effect of international conditions on the
financial markets in the United States shall be such that),
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the delivery of the Securities.
Subsequent to the execution and delivery of the
Terms Agreement, (i) 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) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
<PAGE>
DRAFT
AS OF MARCH 1996 OCTOBER 1997
FORM I COMMON STOCK
PRIMARY OFFERINGS
Shares of Common Stock
FORM II - CORPORATE DEBT
- REGISTERED OFFERINGS
[NAME OF COMPANY]
UNDERWRITING AGREEMENT
[Date]
BEAR, STEARNS & CO. INC.
[ ]
as Representative[s] of the
several Underwriters named in Schedule I attached hereto
[c/o Bear, Stearns & Co. Inc.]
245 Park Avenue
New York, New York 10167
Dear Sirs:
________, a corporation organized and existing under
the laws of ________ (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of ________ shares (the "[Firm]
Shares") of its common stock, par value ____ per shares (the
"Common Stock") [and, for the sole purpose of covering the
principal amount of ________ (the "Securities"), to be issued
under an indenture (the "Indenture" dated ________ between the
Company and over allotments in connection with the sale of the
Firm Shares, at the option of the Underwriters, up to an
additional ________ shares (the "Additional Shares") of Common
Stock. The Firm Shares and any Additional Shares purchased by
the Underwriters are referred to herein as the "Shares"] The
Shares are more fully described in the Registration Statement
referred to below. ________, as trustee (the "Trustee"), as
follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with, the
Underwriters that: (a) The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement, and may have filed an amendment or amendments thereto,
on Form ______ (No. 33-______), for the registration of the
Sharecurities under the Securities Act of 1933, as amended (the
"Act"). Such registration statement, including the prospectus,
financial statements and schedules, exhibits and all other
documents filed as a part thereof, as amended at the time of
effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434
of the Rules and Regulations of the Commission under the
Securities Act (the "Regulations"), is herein called the
"Registration Statement" and the prospectus, in the form first
filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations or filed as part of the Registration Statement at
the time of effectiveness if no Rule 424(b) or Rule 434 filing is
required, is herein called the "Prospectus". The term
"preliminary prospectus" as used herein means a preliminary
prospectus as described in Rule 430 of the Rules and Regulations.
[Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of [Form S-3] [Form S-2] which were filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") [on or before the effective date of the
Registration Statement, the date of such preliminary prospectus
or the date of the Prospectus, as the case may be, and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the Exchange
Act after the effective date of the Registration Statement, the
date of such preliminary prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.***]]****
(b) At the time of the effectiveness of the
Registration Statement or the effectiveness of any post-effective
amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule
434 of the Rules and Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission [,when
any document filed under the Exchange Act is filed] ** andand at
the Closing Date [and the Additional Closing Date, if any,] (as
hereinafter [respectively] defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements
thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and the Rules and
Regulations [and the Exchange Act and the respective rules and
regulations thereunder]***** and does not or will not contain an
untrue statement of a material fact and does not or will not omit
to state any material fact required to be stated therein or
_______________________
***/ To be used in connection with registration statements on
Form S-3.
****/ To be used in connection with registration statements on
Forms S-2 and S-3.
*****/ To be used in connection with registration statements on
Forms S-2 and S-3.
<PAGE>
necessary in order to make the statements therein (i) in the case
of the Registration Statement, not misleading and (ii) in the
case of the Prospectus, in light of the circumstances under which
they were made, not misleading.****** When any related
preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the
registration of the Sharecurities or any amendment thereto or
pursuant to Rule 424(a) of the Rules and Regulations) and when
any amendment thereof or supplement thereto was first filed with
the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act and the
Rules and Regulations [and the Exchange Act and the respective
rules and regulations thereunder]******* and did not contain an
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein in light of the circumstances
under which they were made not misleading. No representation and
warranty is made in this subsection (b), however, with respect to
any information contained in or omitted from the
RegisRegistration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter or the Trustee through you as herein stated expressly
for use in connection with the preparation thereof. If Rule 434
is used, the Company will comply with the requirements of Rule
434.
(s) The Company and its subsidiaries have good
and marketable title to all real and material assets disclosed in
the Registration Statement and Prospectus as being owned by them,
free and clear of all liens, mortgages, claims, security
interests or other encumbrances, except such as are disclosed in
the Registration Statement and Prospectus and except for liens
incurred in the ordinary course of business which do not
materially effect the use or value thereof; property held under
lease by the Company or its subsidiaries is held by them under
valid, subsisting and binding leases with only such exceptions
with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company
and its subsidiaries taken as a whole or as do not materially
affect the value of such property as used by the Company or are
not material in amount and do not interfere in any material
respect with the use of the property or the conduct of the
business of the Company and its subsidiaries taken as a whole.
(t) The Company and its subsidiaries have filed
all necessary federal, state, local and foreign income, franchise
and sales tax returns and have paid all taxes shown thereon as
_________________________
******/ If the offering is registered on a Form S-2
registration statement and the Company elects to
deliver its annual report to shareholders in lieu of
including in the Prospectus certain disclosures, then
additional representations might be appropriate.
*******/ To be used in connection with registration statements on
Forms S-2 and S-3.
<PAGE>
due, and the Company has no knowledge of any tax deficiency which
has been asserted against the Company or any of its subsidiaries
which would materially and adversely affect the business or
properties of the Company and its subsidiaries, taken as a whole.
To the Company's knowledge, tax liabilities in the aggregate are
adequately provided for on the consolidated books of the Company.
The Company has not received notice of any material proposed
additional tax assessments against it or any of its subsidiaries.
(u) Neither the Company nor any of its
subsidiaries is in violation of any law, ordinance, governmental
rule or regulation including, without limitation, federal, state
and local rules and regulations relating to the protection of the
environment or concerning the handling, storage, disposal or
discharge of toxic materials (collectively, "Environmental Laws")
or court decree or order to which it or any of its property is
subject, except for such violations which (individually or in the
aggregate) do not or will not have a material adverse effect on
the business, prospects, properties, assets, operations,
condition (financial or other), net worth or results of
operations of the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries has obtained any
permits, consents and authorizations required to be obtained by
it under applicable laws, rules, ordinances or regulations
including, without limitation, Environmental Laws and any such
permits, consents and authorizations remain in full force and
effect, except as to any of the foregoing the absence of which
(individually or in the aggregate) will not have a material
adverse effect on the business, prospects, properties, assets,
operations, condition (financial or other), net worth or results
of operations of the Company and its subsidiaries taken as a
whole. There is no pending or, to the Company's or any of its
subsidiaries' knowledge, threatened, action or proceeding against
the Company or any of its subsidiaries alleging violations of any
applicable laws, rules, ordinances or regulations including,
without limitation, any Environmental Laws, other than any such
actions or proceedings which, individually or in the aggregate,
if adversely determined, is not reasonably likely to have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole.
(v) No default or event of default with respect
to any Indebtedness (as such term is defined in the Indenture)
entitling the holders thereof to accelerate the maturity thereof
exists or will exist as a result of the execution and delivery of
this Agreement or the consummation of the transactions
contemplated hereby and each of the Company and its subsidiaries
has duly performed or observed all material obligations,
agreements, covenants or conditions contained in any contract,
indenture, mortgage, agreement or instrument relating to any
Indebtedness.
(w) The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets1 is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(x) None of the Company, its subsidiaries or any
affiliate of the Company or its subsidiaries is doing business
with the government of Cuba or with any person or any affiliate
located in Cuba.
(y) Each of the Company and its subsidiaries
maintains insurance of the types and in amounts generally deemed
adequate for its business, including but not limited to, general
liability insurance and insurance covering real and personal
property owned or leased by the Company or any of its
subsidiaries against theft, destruction, damage, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect.
(z) Each of the Company and its subsidiaries owns
or possesses adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses now or proposed to
be operated by it as described in the Prospectus, and none of the
Company or its subsidiaries has received any notice of
infringement of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade
names, copyrights or know-how which, if such assertion of
infringement or conflict were sustained, would, individually or
in the aggregate, have a material adverse effect on the business,
prospects, properties, assets, operations, condition (financial
or other), net worth or results of operations of the Company and
its subsidiaries taken as a whole.
(aa) Each of the Company and its subsidiaries
possesses all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made or will
have made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently
required or necessary to own or lease, as the case may be, and to
operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the
Prospectus ("Permits"), except where the failure to obtain such
Permits would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole; each of the Company and its subsidiaries has
fulfilled and performed all of its obligations with respect to
such Permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights
of the holder of any such Permit; and none of the Company or its
subsidiaries has received any notice of any proceeding relating
to revocation or modification of any such Permit, except as
described in the Prospectus and except where such revocation or
modification would not, individually, or in the aggregate, have a
material adverse effect on the business, prospects, properties,
assets, operations, condition (financial or other), net worth or
results of operations of the Company and its subsidiaries taken
as a whole.
(bb) The statistical and market-related data
included in the Prospectus are based or derived from sources
which the Company and its subsidiaries believe to be reliable and
accurate.
(cc) None of the Company or its subsidiaries, or
any agent acting on their behalf, has taken or will take any
action that might cause this Agreement or the sale of the
Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing
Date.
(dd) There is no strike, labor dispute, slowdown
or work stoppage with the employees of the Company or any of its
subsidiaries which is pending or, to the knowledge of the Company
or any of its subsidiaries, threatened.
(ee) None of the Company or its subsidiaries has
any liability for any prohibited transactions or funding
deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), to which the Company or any of its
subsidiaries makes or ever has made a contribution and in which
any employee of the Company or any of its subsidiaries is or has
ever been a participant. With respect to such plans, the Company
and each of its subsidiaries are in compliance in all material
respects with all applicable provisions of ERISA.
(ff) The Securities and the Indenture will
conform, in all material respects, to the descriptions thereof in
the Prospectus.
(gg) Immediately after the consummation of the
transactions contemplated by this Agreement, the fair value and
present fair saleable value of the assets of the Company will
exceed the sum of its stated liabilities and identified
contingent liabilities; the Company is not, nor will the Company
be, after giving effect to the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby, (i) left with unreasonably
small capital with which to carry on its business it is proposed
to be conducted, (ii) unable to pay its debts (contingent and
otherwise) as they mature or (iii) otherwise insolvent.
[Where appropriate, include additional representations
and warranties with respect to matters such as material
contracts, patents, trademarks, franchises, permits, licenses,
specific litigation, as needed] regulatory approvals, obligations
under ERISA, environmental liability, labor matters, Exchange
listing or NASDAQ/NMS quotation, change of auditors, etc.]
2. Purchase, Sale and Delivery of the Sharecurities.
(a) On the basis of the representations,
warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at
a purchase price per share of $________, the number of [Firm]
Sharethe appropriate purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
the respective names of the Underwriters in Schedule I hereto
plus any additional number of Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 9 hereof.
(b) Payment of the purchase price for, and
delivery of certificates for, the Sharthe Securities shall be
made at the office of [name and address], or at such other place
as shall be agreed upon by you and the Company, at 10:00 A.M. on
the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) (unless postponed in accordance with the
provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company
has elected to rely upon Rule 430A of the Rules and Regulations,
the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) after the determination of the initial
public offering price of the Sharecurities), or such other time
not later than ten business days after such date as shall be
agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment
shall be made to the Company [by certified or official bank check
or checks drawn in federal funds or similar same day funds
payable to the order of the Company] [by wire transfer in same
day funds], against delivery to you for the respective accounts
of the Underwriters of certificates for the Sharecurities to be
purchased by them. Certificates for the Sharecurities shall be
registered in such name or names and in such authorized
denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit
you to examine and package such certificates for delivery at
least one full business day prior to the Closing Date.
[(c) In addition, the Company hereby grants to
the Underwriters the option to purchase up to ________ Additional
Shares at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in
this Section 2, for the sole purpose of covering over allotments
in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the
thirtieth day following the date of the Prospectus, by written
notice by you to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is
being exercised and the date and time, as reasonably determined
by you, when the Additional Shares are to be delivered (such date
and time being herein sometimes referred to as the "Additional
Closing Date"); provided, however, that the Additional Closing
Date shall not be earlier than the Closing Date or earlier than
the second full business day after the date on which the option
shall have been exercised nor later than the eighth full business
day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the
provisions of Section 9 hereof). Certificates for the Additional
Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least
two full business days prior to the Additional Closing Date. The
Company will permit you to examine and package such certificates
for delivery at least one full business day prior to the
Additional Closing Date.
The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the
aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set
forth in Section 9 hereof) bears to [insert the total number of
Firm Shares being purchased from the Company], subject, however,
to such adjustments to eliminate any fractional shares as you in
you sole discretion shall make.
Payment for the Additional Shares shall be made [by
certified or official bank check or checks drawn in federal funds
or similar same day funds, payable to the order of the Company]
[by wire transfer in same day funds] at the offices of ________,
or such other location as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to you for
the respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release
of the Firm SharSecurities, the Underwriters propose to offer the
Sharecurities for sale to the public upon the terms set forth in
the Prospectus.
7. Indemnification.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the
later of when (i) you and the Company shall have received
notification of the effectiveness of the Registration Statement
or (ii) the execution of this Agreement. If either the initial
public offering price or the purchase price per share has not
been agreed upon prior to 5:00 P.M., New York time, on the fifth
full business day after the Registration Statement shall have
become effective, this Agreement shall thereupon terminate
without liability to the Company or the Underwriters except as
herein expressly provided. Until this Agreement becomes effective
as aforesaid, it may be terminated by the Company by notifying
you or by you notifying the Company. Notwithstanding the
foregoing, the provisions of this Section 11 and of Sections 1,
5, 7 and 8 hereof shall at all times be in full force and effect.
12. Notices. All communications hereunder,
except as may be otherwise specifically provided herein, shall be
in writing and, if sent to any Underwriter, shall be mailed,
delivered, or telexed or telegraphed and confirmed in writing, to
such Underwriter c/o Bear, Stearns & Co. Inc., 245 Park Avenue,
New York, N.Y. 10167, Attention: ________________; if sent to the
Company, shall be mailed, delivered, or telegraphed and confirmed
in writing to the Company, ________, Attention:_________________.
13. Parties. This Agreement shall insure solely
to the benefit of, and shall be binding upon, the Underwriters
and the Company and the controlling persons, directors, officers,
employees and agents referred to in Section 7 and 8, and their
respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or
claim under or in respect of or by virtue of this Agreement or
any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of
Securities from any of the Underwriters.
14. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, but without regard to principles of conflicts
of law.
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement among us.
Very truly yours,
[ ]
By __________________
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
[ ]
BY ____________________________
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
<PAGE>
The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of Securities), to which that Underwriter or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably
incurred by that Underwriter or controlling person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically
for inclusion therein; and provided further, that as to any
Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of
Securities to any person by that Underwriter if that Underwriter
failed to send or give a copy of the Prospectus, as the same may
be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary
Prospectus or supplement thereto was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company
with Section 4(c). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be
deemed to include the documents incorporated by reference
therein, and no Underwriter shall be obligated to send or give
any supplement or amendment to any document incorporated by
reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response
to a written request therefor. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise
have to any Underwriter or to any controlling person of that
Underwriter.
Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the
Company), each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such
director, officer or controlling person.
Promptly after receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement
of any action, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, the
indemnified party shall notify the indemnifying party in writing
of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any
such claim or action shall be brought against an indemnified
party, and the indemnified party shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 7, if, in the
reasonable judgment of the Representatives, if there are legal
defenses available to them which are different from or in
addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one
such claim or action or separate but substantially similar or
related claims or actions in the same jurisdiction arising out of
the same allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only
for purposes of appearing with such counsel in such jurisdictions
in which such firm of attorneys is not licensed to practice)),
and in that event the fees and expenses of such separate counsel
shall be paid by the Company. Anything in this Section 7(c) to
the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without
its written consent.
If the indemnification provided for in this
Section 7 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein (other than by reason of
the failure to give notice, as provided in the first sentence of
Section 7(c)), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this
Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or
the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to in this Section 7(d). The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section 7(d) shall be deemed to include, for purposes of
this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public was offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not
joint.
If any Underwriter defaults in the performance of its obligations
under a Terms Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the number of shares or principal
amount of Securities set opposite the name of each remaining
non-defaulting Underwriter in Schedule A to the Terms Agreement
bears to the total number of shares or principal amount of the
Securities set opposite the names of all the remaining
non-defaulting Underwriters in Schedule A to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any Securities on the Closing
Date if the aggregate number of shares or principal amount of the
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares or principal amount of the Securities, and
any remaining non-defaulting Underwriter shall not be obligated
to purchase more than 110% of the number of shares or principal
amount of Securities set forth opposite its name on Schedule A to
the Terms Agreement. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the
Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the
number of shares or principal amount which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the
Terms Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to
the extent set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Representatives or the
Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or any
supplement thereto or in any other document or arrangement.
its pro rata share of
<PAGE>
SCHEDULE I
Number of [Firm]
Description of Securities:_______________________________________
Principal Amount of
Name of Underwriter Sharecurities to be
Purchased
Bear, Stearns & Co. Inc.
Total Aggregate Principal Amount . . . . . . . . . . . .
<PAGE>
SCHEDULE II
[Names of sharnoteholders subject to the lock-up provision]
EQUIFAX INC.
To
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
__________
INDENTURE
Dated as of _______________, 1998
__________
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. DEFINITIONS ........................................... 1
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS................... 11
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................. 12
Section 1.04. NOTICES, ETC., TO TRUSTEE AND COMPANY.................. 13
Section 1.05. NOTICE TO HOLDERS; WAIVER ............................. 13
Section 1.06. CONFLICT WITH TRUST INDENTURE ACT ..................... 14
Section 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS .............. 14
Section 1.08. SUCCESSORS AND ASSIGNS ................................ 14
Section 1.09. SEPARABILITY CLAUSE ................................... 14
Section 1.10. BENEFITS OF INDENTURE ................................. 14
Section 1.11. GOVERNING LAW ......................................... 15
Section 1.12. LEGAL HOLIDAYS ........................................ 15
Section 1.13. LIABILITY SOLELY CORPORATE ............................ 15
Section 1.14. COUNTERPARTS .......................................... 15
ARTICLE TWO
SECURITY FORMS
Section 2.01. FORMS GENERALLY ....................................... 16
Section 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION ....... 17
Section 2.03. SECURITIES IN GLOBAL FORM ............................. 17
ARTICLE THREE
THE SECURITIES
Section 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES................... 17
Section 3.02. DENOMINATIONS ......................................... 21
Section 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING ........ 21
Section 3.04. TEMPORARY SECURITIES; EXCHANGE OF TEMPORARY
GLOBAL NOTES FOR DEFINITIVE BEARER SECURITIES ......... 24
Section 3.05. REGISTRATION, TRANSFER AND EXCHANGE ................... 29
Section 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES ...... 31
Section 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED......... 32
Section 3.08. CANCELLATION .......................................... 34
Section 3.09. COMPUTATION OF INTEREST ............................... 35
Section 3.10. CURRENCY OF PAYMENTS IN RESPECT OF SECURITIES.......... 35
- 1 -
<PAGE>
Page
Section 3.11. JUDGMENTS ............................................ 38
Section 3.12. EXCHANGE UPON DEFAULT ................................. 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. SATISFACTION AND DISCHARGE OF INDENTURE ............... 39
Section 4.02. APPLICATION OF TRUST MONEY ............................ 41
ARTICLE FIVE
REMEDIES
Section 5.01. EVENTS OF DEFAULT ..................................... 41
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT .... 42
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE ................................ 44
Section 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM ...................... 44
Section 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES ........................................ 46
Section 5.06. APPLICATION OF MONEY COLLECTED......................... 45
Section 5.07. LIMITATION ON SUITS ................................... 46
Section 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST ....................... 47
Section 5.09. RESTORATION OF RIGHTS AND REMEDIES .................... 48
Section 5.10. RIGHTS AND REMEDIES CUMULATIVE ........................ 48
Section 5.11. DELAY OR OMISSION NOT WAIVER .......................... 47
Section 5.12. CONTROL BY HOLDERS .................................... 47
Section 5.13. WAIVER OF PAST DEFAULTS ............................... 49
Section 5.14. UNDERTAKING FOR COSTS ................................ 48
Section 5.15. WAIVER OF STAY OR EXTENSION LAWS ...................... 49
ARTICLE SIX
THE TRUSTEE
Section 6.01. CERTAIN DUTIES AND RESPONSIBILITIES ................... 50
Section 6.02. NOTICE OF DEFAULTS ................................... 50
Section 6.03. CERTAIN RIGHTS OF TRUSTEE ............................. 50
Section 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES ....................................... 50
Section 6.05. MAY HOLD SECURITIES ................................... 51
Section 6.06. MONEY HELD IN TRUST ................................... 52
Section 6.07. COMPENSATION AND REIMBURSEMENT......................... 52
Section 6.08. DISQUALIFICATION; CONFLICTING INTERESTS................ 52
Section 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY................ 53
Section 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR ............................................. 53
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ................ 53
- 2 -
<PAGE>
Page
Section 6.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS ................................ 54
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY ....................................... 56
Section 6.14. APPOINTMENT OF AUTHENTICATING AGENT.................... 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS .................................. 57
Section 7.02. PRESERVATION OF INFORMATION;
COMMUNICATION TO HOLDERS .............................. 57
Section 7.03. REPORTS BY TRUSTEE .................................... 59
Section 7.04. REPORTS BY COMPANY..................................... 58
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. ACTS OF HOLDERS ...................................... 58
Section 8.02. PROOF OF OWNERSHIP; PROOF OF EXECUTION
OF INSTRUMENTS BY HOLDER .............................. 60
Section 8.03. PERSONS DEEMED OWNERS ................................. 60
Section 8.04. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND........... 61
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. PURPOSES OF MEETINGS .................................. 60
Section 9.02. CALL OF MEETINGS BY TRUSTEE ........................... 62
Section 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS ................ 61
Section 9.04. QUALIFICATIONS FOR VOTING ............................. 61
Section 9.05. REGULATIONS ........................................... 62
Section 9.06. VOTING ................................................ 62
Section 9.07. NO DELAY OF RIGHTS BY MEETING ......................... 64
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS ........................................ 64
Section 10.02. SUCCESSOR CORPORATION SUBSTITUTED .................... 65
- 3 -
<PAGE>
age
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS .......................................... 64
Section 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS .............................................. 65
Section 11.03. EXECUTION OF SUPPLEMENTAL INDENTURES ................. 68
Section 11.04. EFFECT OF SUPPLEMENTAL INDENTURES .................... 68
Section 11.05. CONFORMITY WITH TRUST INDENTURE ACT .................. 68
Section 11.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES ........................................... 67
Section 11.07. NOTICE OF SUPPLEMENTAL INDENTURE ..................... 67
ARTICLE TWELVE
COVENANTS
Section 12.01. PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST ............................................. 69
Section 12.02. OFFICER'S CERTIFICATE AS TO DEFAULT .................. 69
Section 12.03. MAINTENANCE OF OFFICE OR AGENCY ...................... 68
Section 12.04. MONEY FOR SECURITIES; PAYMENTS TO BE
HELD IN TRUST ........................................ 69
Section 12.05. CORPORATE EXISTENCE .................................. 72
Section 12.06. PURCHASE OF SECURITIES BY COMPANY .................... 72
Section 12.07. LIMITATION UPON MORTGAGES AND LIENS .................. 73
Section 12.08. LIMITATION UPON SALE AND LEASEBACK
TRANSACTIONS ......................................... 73
Section 12.09. WAIVER OF CERTAIN COVENANTS .......................... 74
ARTICLE THIRTEEN
REDEMPTION OF SECURITIES
Section 13.01. APPLICABILITY OF ARTICLE ............................. 75
Section 13.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE ................ 75
Section 13.03. SELECTION BY TRUSTEE OF SECURITIES TO
BE REDEEMED ......................................... 75
Section 13.04. NOTICE OF REDEMPTION ................................ 76
Section 13.05. DEPOSIT OF REDEMPTION PRICE .......................... 77
Section 13.06. SECURITIES PAYABLE ON REDEMPTION DATE ................ 77
Section 13.07. SECURITIES REDEEMED IN PART .......................... 78
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. APPLICABILITY OF ARTICLE ............................. 78
Section 14.02. SATISFACTION OF MANDATORY SINKING FUND
PAYMENTS WITH SECURITIES ............................. 78
Section 14.03. REDEMPTION OF SECURITIES FOR SINKING
FUND ................................................. 79
- 4 -
<PAGE>
Page
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. APPLICABILITY OF ARTICLE ............................. 80
Section 15.02. DEFEASANCE UPON DEPOSIT OF MONEYS OR
U.S. GOVERNMENT OBLIGATIONS .......................... 81
Section 15.03. DEPOSITED MONEYS AND U.S. GOVERNMENT,
OBLIGATIONS TO BE HELD IN TRUST ...................... 81
Section 15.04. COVENANT DEFEASANCE .................................. 81
Section 15.05 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE ........................................... 82
Section 15.06 DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS, COVENANT
DEFEASANCE ........................................... 84
Section 15.07 REINSTATEMENT ........................................ 84
- 5 -<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _____ __, 1998
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . 6.08, 6.10
(c) . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . 6.13(b)
(c) . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . 7.01, 7.02(a)
(b) . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . 7.02(c)
Section 313 (a) . . . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . . . 7.03(b)
(c) . . . . . . . . . . . . . 7.03(a),
7.03(c)
(d) 7.03(d)
Section 314 (a) 7.04, 12.02
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 315 (a) 6.01(a),
6.01(c)
(b) 6.02,
7.03(a)(7)
(c) 6.01(b)
(d)(1) 6.01(a)
(d)(2) 6.01(c)(2)
(d)(3) 6.01(c)(3)
(e) 5.14
Section 316 (a)(1)(A) 5.02, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.08
(c) Not Applicable
Section 317 (a)(1) 5.03
(a)(2) 5.04
(b) 12.04
Section 318 1.06
_______________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the
Indenture.
<PAGE>
INDENTURE, dated as of _____ __, 1998, between EQUIFAX
INC., a Georgia corporation (hereinafter called the "COMPANY"),
having its principal executive office at 1600 Peachtree Street,
N.W., Atlanta, Georgia 30309, and THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association (hereinafter called the
"TRUSTEE"), having its Corporate Trust Office at 153 West 51st
Street, Suite 4011, New York, NY 10019.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its debentures, notes, bonds or other evidences of
indebtedness (herein generally called the "Securities"), to be
issued in one or more series, as in this Indenture provided.
All things necessary have been done to make this
Indenture a valid agreement of the Company, in accordance with
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders of
Securities or of Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term "GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the
United States of America at the date of such computation;
and
<PAGE>
2
(4) the words "HEREIN", "HEREOF" and "HEREUNDER" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally within an Article of this
Indenture, may be defined in that Article.
"ACT", when used with respect to any Holder, has the
meaning specified in Section 8.01.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AFFILIATED CORPORATION" means any corporation which is
controlled by the Company but which is not a Subsidiary of
the Company pursuant to the definition of the term
"Subsidiary".
"AUTHENTICATING AGENT" means any Person authorized by
the Trustee pursuant to Section 6.14 to act on behalf of the
Trustee to authenticate Securities.
"AUTHORIZED NEWSPAPER" means a newspaper in an official
language of the country of publication customarily published
at least once a day, and customarily published for at least
five days in each calendar week, and of general circulation
in the place in connection with which the term is used or in
the financial community of such place. Where successive
publications are required to be made in Authorized
Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day
in such city.
"BEARER SECURITY" means any Security (with or without
Coupons), in the form established pursuant to Section 2.01,
which is payable to bearer (including any Global Note
payable to bearer) and title to which passes by delivery
only, but does not include any Coupons.
"BOARD OF DIRECTORS" means any of the board of
directors of the Company, any committee of that board duly
authorized to act hereunder, any committee consisting of one
or more directors and/or officers of the Company duly
authorized to act hereunder, or any one or more directors
and/or officers of the Company duly authorized to act
hereunder.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
<PAGE>
3
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities means any day which is not a
Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies in that Place of
Payment or other location are authorized or obligated by
law, regulation or executive order to close, except as
otherwise specified pursuant to Section 3.01.
"CEDEL" means Cedel S.A.
"CODE" means the Internal Revenue Code of 1986, as
amended and as in effect on the date hereof.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the execution of this instrument such
Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means,
respectively, a written request or order signed in the name
of the Company by the Chairman, a Vice Chairman, the
President, the Chief Financial Officer or a Vice President
of the Company and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the
Trustee.
"COMPONENT CURRENCY" has the meaning specified in
Section 3.10(i).
<PAGE>
4
"CONSOLIDATED STOCKHOLDERS' EQUITY", at any time,
means the total stockholders' equity of the Company and
its consolidated subsidiaries, determined on a
consolidated basis in accordance with generally
accepted accounting principles, as of the end of the
most recently completed fiscal quarter of the Company
for which financial information is then available.
"CONVERSION DATE" has the meaning specified in Section
3.10(e).
"CONVERSION EVENT" means the cessation of (i) a Foreign
Currency to be used both by the government of the country
which issued such Currency and for the settlement of
transactions by public institutions of or within the
international banking community, (ii) the ECU to be used
both within the European Monetary System and for the
settlement of transactions by public institutions of or
within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it
was established.
"CORPORATE TRUST OFFICE" means the principal corporate
trust office of the Trustee at which at any particular time
its corporate trust business shall be administered, which
office at the date of execution of this instrument is
located at 153 West 51st Street, Suite 4011, New York, NY
10019.
"CORPORATION" means a corporation, association,
company, limited liability company, joint-stock company or
business trust.
"COUPON" means any interest coupon appertaining to any
Security.
"COUPON SECURITY" means any Bearer Security
authenticated and delivered with one or more Coupons
appertaining thereto.
"CURRENCY" means Dollars or Foreign Currency.
"CURRENCY DETERMINATION AGENT" means the agent, if any,
from time to time selected by the Trustee for purposes of
Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment
shall be acceptable to the Company and shall, in the opinion
of the Company and the Trustee at the time of such
appointment, require such agent to make the determinations
required by this Indenture by a method consistent with the
method provided in this Indenture for the making of such
decision or determination.
"DEFAULTED INTEREST" has the meaning specified in
Section 3.07.
"DISCOUNT SECURITY" means any Security which is issued
with "original issue discount" within the meaning of Section
1273(a) of the Code and the regulations thereunder.
<PAGE>
5
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
of payment is legal tender for the payment of public and
private debts.
"DOLLAR EQUIVALENT OF THE CURRENCY UNIT" has the
meaning specified in Section 3.10(h).
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the
meaning specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"ELECTION DATE" has the meaning specified in Section
3.10(i).
"EURO-CLEAR OPERATOR" means Morgan Guaranty Trust
Company of New York, Brussels office, or its successor as
operator of the Euro-clear System.
"EUROPEAN COMMUNITIES" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary
System established by the Resolution of December 5, 1978 of
the Council of the European Communities.
"EVENT OF DEFAULT" has the meaning specified in Section
5.01.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a telex or
a certificate setting forth (i) the applicable Market
Exchange Rate and (ii) the Dollar, Foreign Currency or
Currency unit amounts of principal, premium, if any, and any
interest respectively (on an aggregate basis and on the
basis of a Security having the lowest denomination principal
amount determined in accordance with Section 3.02 in the
relevant Currency or Currency unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer or
any Assistant Treasurer of the Company.
"FIXED RATE SECURITY" means a Security which provides
for the payment of interest at a fixed rate.
"FLOATING RATE SECURITY" means a Security which
provides for the payment of interest at a variable rate
determined periodically by reference to an interest rate
index or any other index specified pursuant to Section 3.01.
"FOREIGN CURRENCY" means a currency issued by the
government of any country other than the United States or a
composite currency or currency unit the value of which is
determined by reference to the values of the currencies of
any group of countries.
<PAGE>
6
"FUNDED DEBT" eans any indebtedness for money
borrowed, created, issued, incurred, assumed or
guaranteed which would, in accordance with generally
accepted accounting practice, be classified as long-
term debt, but in any event including all indebtedness
for money borrowed, whether secured or unsecured,
maturing more than one year or extendible at the option
of the obligor to a date more than one year, after the
date of determination thereof (excluding any amount
thereof included in current liabilities).
"GLOBAL NOTE" means a Registered or Bearer Security
evidencing all or part of a series of Securities, including,
without limitation, any temporary or permanent Global Note.
"HOLDER" means, with respect to a Registered Security,
the Registered Holder, and with respect to a Bearer Security
or a Coupon, the bearer thereof.
"INDEBTEDNESS" means (1) any liability of any Person
(a) for borrowed money, or (b) evidenced by a bond, note,
debenture or similar instrument (including purchase money
obligations but excluding Trade Payables), or (c) for the
payment of money relating to a lease that is required to be
classified as a capitalized lease obligation in accordance
with generally accepted accounting principles, or (d)
preferred or preference stock of a Subsidiary of the Company
held by Persons other than the Company or a Subsidiary of
the Company; (2) any liability of others described in the
preceding clause (1) that the Person has guaranteed, that is
recourse to such Person or that is otherwise its legal
liability; and (3) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability
of the types referred to in clauses (1) and (2) above.
"INDENTURE" means this instrument as originally
executed, or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof
and, unless the context otherwise requires, shall include
the terms of a particular series of Securities as
established pursuant to Section 3.01.
The term "INTEREST," when used with respect to a
Discount Security which by its terms bears interest only
after maturity, means interest payable after Maturity, and,
when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security, if so
provided pursuant to Section 3.01.
"INTEREST PAYMENT DATE" with respect to any Security
means the Stated Maturity of an installment of interest on
such Security.
"MARKET EXCHANGE RATE" means (i) for any conversion
involving a Currency unit on the one hand and Dollars or any
Foreign Currency on the other, the exchange rate between the
<PAGE>
7
relevant Currency unit and Dollars or such Foreign Currency
calculated by the method specified pursuant to Section 3.01
for the securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon
(New York City time) buying rate for such Foreign Currency
for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into
Dollars or another Foreign Currency, the spot rate at noon
local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be
purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City,
London or any other principal market for Dollars or such
purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in
the foregoing clauses (i), (ii) and (iii) the Currency
Determination Agent, if any, or if there shall not be a
Currency Determination Agent, then the Trustee, shall use,
in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of
the most recent available date, or quotations from one or
more major banks in New York City, London or other principal
market for such Currency or Currency unit in question, or
such other quotations as the Currency Determination Agent or
the Trustee, as the case may be, shall deem appropriate.
Unless otherwise specified by the Currency Determination
Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more
than one market for dealing in any Currency or Currency unit
by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such Currency or Currency
unit shall be that upon which a nonresident issuer of
securities designated in such Currency or Currency unit
would purchase such Currency or Currency unit in order to
make payments in respect of such securities.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment
at the option of the Holder thereof, required repurchase or
otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by
the Chairman, a Vice Chairman, the President, the Chief
Financial Officer or a Vice President of the Company, and by
the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel to the Company (including an
employee of the Company) and who shall be acceptable to the
Trustee, which is delivered to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
<PAGE>
8
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such
Securities and any Coupons thereto pertaining;
provided, however, that if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant
to Section 3.06 or in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of Securities Outstanding
have performed any Act hereunder, Securities owned by the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in
relying upon any such Act, only Securities which the Trustee
knows to be 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 Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal
amount of Outstanding Securities have performed any Act
hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose 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 5.02 and the principal amount of a Security
denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated
pursuant to Section 3.10(k).
"OVERDUE RATE", when used with respect to the
Securities of any series, means the rate designated as such
in or pursuant to the Board Resolution or the supplemental
indenture, as the case may be, relating to such series as
contemplated by Section 3.01.
"PAYING AGENT" means any Person authorized by the
Company to pay the principal of (and premium, if any) or
<PAGE>
9
interest, if any, on any Securities on behalf of the
Company.
"PERMANENT GLOBAL NOTE" shall have the meaning given
such term in Section 3.04(b).
"PERSON" means any individual, corporation,
partnership, limited liability partnership, joint venture,
trust, estate, unincorporated organization or government or
any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, means the place or places where
the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified pursuant
to Section 3.01.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a
mutilated, lost, destroyed or stolen Security or a Security
to which a mutilated, lost, destroyed or stolen Coupon
appertains shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security or the
Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"PRINCIPAL FACILITY" means the real property,
fixtures, machinery and equipment relating to any
facility owned by the Company or any Subsidiary, except
for any facility that, in the opinion of the Board of
Directors, is not of material importance to the
business conducted by the Company and its Subsidiaries,
taken as a whole.
"REDEMPTION DATE", when used with respect to a Security
to be redeemed, means the date fixed for such redemption by
or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to a
Security to be redeemed, means the price at which such
Security is to be redeemed as established by or pursuant to
this Indenture, which, unless otherwise specified pursuant
to Section 3.01, shall be (i) in the case of any Security
other than a Discount Security, the principal amount
thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date, and
(ii) in the case of a Discount Security, the amount of the
principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.02.
"REGISTERED HOLDER" means the Person in whose name a
Registered Security is registered in the Security Register.
"REGISTERED SECURITY" means any Security in the form
established pursuant to Section 2.01 which is registered as
to principal and interest in the Security Register.
"REGULAR RECORD DATE" for the interest payable on the
Registered Securities of any series on any Interest Payment
Date means the date specified for that purpose pursuant to<PAGE>
10
Section 3.01 for such Interest Payment Date.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities (including any Global Notes) authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 3.05(a).
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to
Section 3.07.
"SPECIFIED AMOUNT" has the meaning specified in Section
3.10(i).
"STATED MATURITY", when used with respect to any
Security or any installment of principal thereof or premium
thereon or interest thereon, means the date specified in
such Security or the Coupon, if any, representing such
installment of interest, as the date on which the principal
of such Security or such installment of principal, premium
or interest is due and payable.
"SUBSIDIARY" means any corporation of which at least a
majority of the outstanding stock having by the terms
thereof ordinary voting power to elect a majority of the
directors of such corporation, irrespective of whether or
not, 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 or controlled by the Company
or by one or more Subsidiaries thereof, or by the Company
and one or more Subsidiaries.
"tEMPORARY GLOBAL NOTE" shall have the meaning given
such term in Section 3.04(b).
"TRADE PAYABLES" means accounts payable or any other
indebtedness or monetary obligations to trade creditors
created or assumed in the ordinary course of business in
connection with the obtaining of materials or services.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
<PAGE>
11
mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of
such series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after the date as of which
this instrument was executed, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"UNITED STATES" means the United States of America
(including the States and the District of Columbia), and its
possessions, which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"U.S. DEPOSITARY" means a clearing agency registered
under the Securities Exchange Act of 1934, as amended, or
any successor thereto, which shall in either case be
designated by the Company pursuant to Section 3.01 until a
successor U.S. Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is
then a U.S. Depositary hereunder, and if at any time there
is more than one such Person, "U.S. Depositary" as used with
respect to the Securities of any series shall mean the U.S.
Depositary with respect to the Securities of that series.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning specified
in Section 15.05.
"U.S. PERSON" means a citizen or resident of the United
States, a corporation, partnership or other entity created
or organized in or under the laws of the United States, or
an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
"VALUATION DATE" has the meaning specified in
Section 3.10(d).
"VICE PRESIDENT" includes with respect to the Company
and the Trustee, any Vice President of the Company or the
Trustee, as the case may be, whether or not designated by a
number or word or words added before or after the title
"Vice President".
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of
which all of the outstanding voting stock (other than
directors' qualifying shares) is at the time, directly
or indirectly, owned by the Company, or by one or more
Wholly-Owned Subsidiaries of the Company or by the
Company and one or more Wholly-Owned Subsidiaries.
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in<PAGE>
12
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than certificates provided pursuant to Section 12.02)
shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.<PAGE>
13
Section 1.04. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
expressly provided herein or in the terms of the Securities
of any series) if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
expressly provided herein or in the terms of the Securities
of any series) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the
United States, to the Company addressed to it at the address
of its principal office specified in the first paragraph of
this instrument, to the attention of its Secretary, or at
any other address previously furnished in writing to the
Trustee by the Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official
language of the country of publication.
Section 1.05. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of
any event, (1) such notice shall be sufficiently given to
Registered Holders (unless otherwise expressly provided herein or
in the terms of the Securities of any series) if in writing and
mailed, first-class postage prepaid, to such Registered Holders
as their names and addresses appear in the Security Register,
within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons
(unless otherwise herein expressly provided) if published at
least twice in an Authorized Newspaper or Newspapers in The City
of New York and, if Securities of such series are then listed on
The Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock
exchange shall so require, in a daily newspaper in London or
Luxembourg or in such other city or cities specified pursuant to
Section 3.01 or in any Security on Business Days, the first such
publication to be not earlier than the earliest date and not
later than two Business Days prior to the latest date prescribed
for the giving of such notice; provided, however, that, in any
case, any notice to Holders of Floating Rate Securities regarding
the determination of a periodic rate of interest, if such notice
is required pursuant to Section 3.01, shall be sufficiently given
if given in the manner specified pursuant to Section 3.01.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any
notice so published as to any particular Holder shall not affect<PAGE>
14
the sufficiency of such notice with respect to other Holders, and
any notice which is published in the manner herein provided shall
be conclusively presumed to have been duly given. Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In case by reason of the suspension of publication of
any Authorized Newspapers or by reason of any other cause it
shall be impracticable to give such notice by publication, then
such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose
hereunder.
Section 1.06. CONFLICT 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, the
latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.09. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
<PAGE>
15
Section 1.11. GOVERNING LAW.
This Indenture, the Securities and the Coupons shall be
governed by and construed in accordance with the laws of the
State of New York.
Section 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.01 or
in any Security, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security of any series
shall not be a Business Day at any Place of Payment for the
Securities of that series, then (notwithstanding any other
provision of this Indenture or of the Securities or Coupons)
payment of principal (and premium, if any) or interest need not
be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date
or Redemption Date or at the Stated Maturity, and no interest
shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
Section 1.13. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of (or premium, if any) or interest on any Security or
Coupon, or any claim based thereon, or upon any obligation,
covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company, either directly or through the
Company or any successor, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities and Coupons are solely
corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the
Company, either directly or indirectly through the Company or any
such successor, because of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities or Coupons or to be implied herefrom or therefrom; and
that any such personal liability is hereby expressly released as
a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Securities.
Section 1.14. COUNTERPARTS.
This Indenture may be executed in any number of
counterparts, each of which so executed shall be an original, but
all such counterparts shall constitute but one and the same
instrument.
<PAGE>
16
ARTICLE TWO
SECURITY FORMS
Section 2.01. FORMS GENERALLY.
The Securities and the Coupons, if any, of each series
shall be substantially in one of the forms (including global
form) established in or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, and shall have such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on
which any series of the Securities may be listed, or to conform
to usage, all as determined by the officers executing such
Securities and Coupons as conclusively evidenced by their
execution of such Securities and Coupons. If the form of a
series of Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee, together with
an Officers' Certificate setting forth the form of such series,
at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such
Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section
3.01, Securities in bearer form (other than in global form) shall
have Coupons attached.
The definitive Securities and Coupons, if any, of each
series shall be printed, typed, lithographed or engraved or
produced by any combination of these methods, may or may not be
produced on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities and Coupons, as conclusively evidenced by their
execution of such Securities and Coupons.
<PAGE>
17
Section 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication
to be borne by the Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Securities issued under
the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By ___________________________
Authorized Signatory
Section 2.03. SECURITIES IN GLOBAL FORM.
If any Security of a series is issuable in global form
(a "GLOBAL NOTE"), such Global Note 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 Note to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such
manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after
its initial issuance, shall be in writing but need not comply
with Section 1.02.
Global Notes may be issued in either registered or
bearer form and in either temporary or permanent form. Permanent
Global Notes will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
Section 3.01. 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 Board Resolution
and (subject to Section 3.03) set forth in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series:
<PAGE>
18
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all
other series of Securities);
(2) the limit, if any, upon the aggregate principal
amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon transfer of, or
in exchange for, or in lieu of, other Securities of such
series pursuant to Sections 3.04, 3.05, 3.06, 11.06 or
13.07);
(3) the date or dates on which or periods during which
the Securities of the series may be issued, and the date or
dates (or the method of determination thereof) on which the
principal of (and premium, if any, on) the Securities of
such series are or may be payable (which, if so provided in
such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in
the Securities of the series issued from time to time);
(4) the rate or rates (or the method of determination
thereof) at which the Securities of the series shall bear
interest, if any, and the dates from which such interest
shall accrue (which, in either case or both, if so provided
in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in
the Securities of the series issued from time to time); and
the Interest Payment Dates on which such interest shall be
payable (or the method of determination thereof), and, in
the case of Registered Securities, the Regular Record Dates
for the interest payable on such Interest Payment Dates and,
in the case of Floating Rate Securities, the notice, if any,
to Holders regarding the determination of interest and the
manner of giving such notice;
(5) the place or places, if any, in addition to or
instead of the Corporate Trust Office of the Trustee (in the
case of Registered Securities) or the principal London
office of the Trustee (in the case of Bearer Securities),
where the principal of (and premium, if any) and interest on
Securities of the series shall be payable; the extent to
which, or the manner in which, any interest payable on any
Global Note on an Interest Payment Date will be paid, if
other than in the manner provided in Section 3.07; the
extent, if any, to which the provisions of the last sentence
of Section 12.01 shall apply to the Securities of the
Series; and the manner in which any principal of, or
premium, if any, on, any Global Note will be paid, if other
than as set forth elsewhere herein;
(6) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder and the period or periods within which or the dates
on which, the prices at which and the terms and conditions
upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such
obligation;
(7) the period or periods within which, or the date or
dates on which, the price or prices at which, and the terms
and conditions upon which Securities of the series may be
redeemed, if any, in whole or in part, at the option of the
Company or otherwise;<PAGE>
19
(8) if the coin or Currency in which the Securities
shall be issuable is in Dollars, the denominations of such
Securities if other than denominations of $1,000 and any
integral multiple thereof (except as provided in Section
3.04);
(9) whether the Securities of the series are to be
issued as Discount Securities and the amount of discount
with which such Securities may be issued and, 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 5.02;
(10) whether the provisions set forth in Article
Fifteen shall apply, and, if applicable, any additional
and/or alternative provisions for the defeasance of
Securities of the series;
(11) whether Securities of the series are to be issued
as Registered Securities or Bearer Securities or both, and,
if Bearer Securities are issued, whether Coupons will be
attached thereto, whether Bearer Securities of the series
may be exchanged for Registered Securities of the series, as
provided in Section 3.05(b) or otherwise and the
circumstances under which and the place or places at which
any such exchanges, if permitted, may be made;
(12) whether provisions for payment of additional
amounts or tax redemptions shall apply and, if such
provisions shall apply, such provisions; and, if Bearer
Securities of the series are to be issued, whether a
procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure
set forth in Section 3.04(b) shall apply, the forms of
certifications to be delivered under such procedure;
(13) if other than Dollars, the Foreign Currency or
Currencies in which Securities of the series shall be
denominated or in which payment of the principal of (and/or
premium, if any) and/or interest on the Securities of the
series may be made, and the particular provisions applicable
thereto and, if applicable, the amount of Securities of the
series which entitles the Holder of a Security of the series
or its proxy to one vote for purposes of Section 9.05;
(14) if the principal of (and premium, if any) or
interest on Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a
Currency other than that in which the Securities are
denominated or payable without such election, in addition to
or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon
which, such election may be made and the time and the manner
of determining the exchange rate or rates between the
Currency or Currencies in which the Securities are
denominated or payable without such election and the
Currency or Currencies in which the Securities are to be
paid if such election is made;
(15) the date as of which any Securities of the series
shall be dated, if other than as set forth in Section 3.03;
<PAGE>
20
(16) if the amount of payments of principal of (and
premium, if any) or interest on the Securities of the series
may be determined with reference to an index, including, but
not limited to, an index based on a Currency or Currencies
other than that in which the Securities are denominated or
payable, or any other type of index, the manner in which
such amounts shall be determined;
(17) if the Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning
the payment of principal of (and premium, if any) or any
interest on such Securities (including the Currency or
Currencies of payment thereof);
(18) the designation of the original Currency
Determination Agent, if any;
(19) the applicable Overdue Rate, if any;
(20) if the Securities of the series do not bear
interest payable on semi-annual Interest Payment Dates, the
applicable dates for purposes of Section 7.01;
(21) any addition to, or modification or deletion of,
any Events of Default or covenants (including, without
limitation, any of the covenants set forth in Article
Twelve) provided for with respect to Securities of the
series;
(22) if Bearer Securities of the series are to be
issued, (x) whether interest in respect of any portion of a
temporary Security in global form (representing all of the
Outstanding Bearer Securities of the series) payable in
respect of any Interest Payment Date prior to the exchange
of such temporary Security for definitive Securities of the
series shall be paid to any clearing organization with
respect to the portion of such temporary Security held for
its account and, in such event, the terms and conditions
(including any certification requirements) upon which any
such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable
on such Interest Payment Date, and (y) the terms upon which
interests in such temporary Security in global form may be
exchanged for interests in a permanent Global Note or for
definitive Securities of the series and the terms upon which
interests in a permanent Global Note, if any, may be
exchanged for definitive Securities of the series;
(23) whether the Securities of the series shall be
issued in whole or in part in the form of one or more Global
Notes and, in such case, the U.S. Depositary or any Common
Depositary for such Global Note or Notes; and if the
Securities of the series are issuable only as Registered
Securities, (A) the manner in which and the circumstances
under which Global Notes representing Securities of the
series may be exchanged for Registered Securities in
definitive form, if other than, or in addition to, the
manner and circumstances specified in Section 3.04(c), and
<PAGE>
21
(B) any other provisions that may be necessary or desirable
to effect compliance with the rules, regulations, practices
and policies of the U.S. Depositary from time to time in
effect, which provisions may or may not be consistent with
Section 3.04 (c);
(24) if the Securities of such series may be converted
into or exchanged for other securities of the Company or any
other Persons, the terms and conditions pursuant to which
the Securities of such series may be converted or exchanged;
(25) if the principal of or premium, if any, or
interest, if any, on the Securities of such series are to be
payable, at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such
securities or other property, or the method by which such
amount shall be determined, and the periods within which,
and the terms and conditions upon which such election may be
made;
(26) if the Securities and/or Coupons of the series are
to be issued upon exercise of warrants, the terms and
conditions relating to such issuance and such warrants; and
(27) 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, rate or rates of interest
(or the method by which such rate or rates are to be determined),
Stated Maturity and the date from which interest, if any, shall
accrue, and except as may otherwise be provided in or pursuant to
such Board Resolution and (subject to Section 3.03) set forth in
such Officers' Certificate, or in any such indenture supplemental
hereto. The terms of any Securities may be determined from time
to time by the Company, if so provided in or established pursuant
to the authority granted in a Board Resolution or in any such
indenture supplemental hereto. All Securities of any one series
need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional
Securities of such series.
If any of the terms of a series of Securities is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 3.02. DENOMINATIONS.
In the absence of any specification pursuant to
Section 3.01 with respect to the Securities of any series, the
Securities of such series shall be issuable only as Registered
Securities in denominations of $1,000 and any integral multiple
thereof and shall be payable only in Dollars.
<PAGE>
22
Section 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Securities and the Coupons, if any, of any series
shall be executed on behalf of the Company by its Chairman, a
Vice Chairman, its President, one of its Vice Presidents or its
Treasurer, under its corporate seal, or a facsimile thereof,
reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers
may be manual or facsimile.
Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities and Coupons or did not hold such offices at the date
of such Securities and Coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities, with appropriate Coupons, if any, of any series,
executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Securities
and Coupons; provided, however, that, in connection with its sale
during the "restricted period" (as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided,
further, that a Bearer Security (other than a temporary Global
Note in bearer form) may be delivered outside the United States
in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished to
the Euro-clear operator or to CEDEL a certificate substantially
in the form set forth in Exhibit A to this Indenture.
If all the Securities of any one series are not to be
issued at one time and if a Board Resolution, Officers'
Certificate or supplemental indenture relating to such series
shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
the determination of the terms of particular Securities of such
series (including, without limitation, the interest rate or rates
(or the method by which such rate or rates are to be determined),
if any, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue).
If any Security shall be represented by a permanent
Global Note, then, for purposes of this Section and Section 3.04,
the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion
of a temporary Global Note shall be deemed to be delivery in
connection with the original issuance of such beneficial owner's
interest in such permanent Global Note. Except as permitted by
Section 3.06 or 3.07, the Trustee shall not authenticate and
deliver any Bearer Security unless all Coupons for interest then
matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject
to Section 6.01) shall be fully protected in relying upon, prior
<PAGE>
23
to the authentication and delivery of the Securities and Coupons
of such series, (i) the supplemental indenture or the Board
Resolution and Officers' Certificate by or pursuant to which the
form and terms of such Securities and Coupons have been approved
and (ii) an Opinion of Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the
Trustee in connection with the authentication and delivery
of such Securities and Coupons conform to the requirements
of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such
Securities and Coupons;
(2) the forms and terms of such Securities and Coupons
have been established in conformity with the provisions of
this Indenture;
(3) in the event that the forms or terms of such
Securities and Coupons have been established in a
supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(4) the execution and delivery of such Securities and
Coupons have been duly authorized by all necessary corporate
action of the Company and such Securities and Coupons have
been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company,
are valid and binding obligations enforceable against the
Company in accordance with their terms, entitled to the
benefit of the Indenture, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and subject to
such other exceptions as counsel shall request and as to
which the Trustee shall not reasonably object; and
(5) the amount of Securities Outstanding of such
series, together with the amount of such Securities, does
not exceed any limit established under the terms of this
Indenture on the amount of Securities of such series that
may be authenticated and delivered.
The Trustee shall not be required to authenticate such
Securities and Coupons if the issuance of such Securities and
Coupons pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this
Indenture in a manner which is not reasonably acceptable to the
Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or
<PAGE>
24
permanent or other definitive Bearer Security in global form)
shall be dated as of the date of original issuance of the first
Security of such series to be issued, except as otherwise
provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in
Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Security has never
been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 3.04. TEMPORARY SECURITIES; EXCHANGE OF
TEMPORARY GLOBAL NOTES FOR DEFINITIVE BEARER SECURITIES; GLOBAL
NOTES REPRESENTING REGISTERED SECURITIES.
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Registered Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination for Registered Securities of such series,
substantially of the tenor of the definitive Registered
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities
may determine, as conclusively evidenced by their execution of
such Registered Securities. Every such temporary Registered
Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Registered Securities in lieu of
which they are issued. In the case of any series issuable as
Bearer Securities, such temporary Securities may be in global
form, representing such of the Outstanding Securities of such
series as shall be specified therein.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the provisions
of the following paragraphs), if temporary Securities of any
series are issued, the Company will cause definitive Securities
of such series to be prepared without unreasonable delay. After
the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for
definitive Securities of such series, of a like Stated Maturity
and with like terms and provisions, upon surrender of the
temporary Securities of such series at the office or agency of
the Company in a Place of Payment for such series, without charge
to the Holder, except as provided in Section 3.05 in connection
with a transfer. Upon surrender for cancellation of any one or<PAGE>
25
more temporary Securities of any series (accompanied by any
unmatured Coupons), the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of
authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive
Bearer Security (including a permanent Bearer Security in global
form) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in
Section 3.03. Until so exchanged, the temporary Registered
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Registered
Securities of such series.
(b) Unless otherwise specified pursuant to Section
3.01, all Bearer Securities of a series shall be initially issued
in the form of a single temporary Bearer Security in global form
(a "TEMPORARY GLOBAL NOTE"). The Company shall execute, and upon
Company Order the Trustee shall authenticate, any temporary
Global Note and any permanent Bearer Security in global form (as
described below, a "PERMANENT GLOBAL NOTE") upon the same
conditions and in substantially the same manner, and with the
same effect, as definitive Bearer Securities, and the temporary
or permanent Global Note, as the case may be, shall, unless
otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "COMMON
DEPOSITARY"), for the benefit of the Euro-clear Operator or
CEDEL, as the case may be, for credit to the account of the
Company (in the case of sales of Bearer Securities by the Company
directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or
such other accounts as the Company or the managing underwriter,
respectively, may direct.
On or after the date specified in or determined
pursuant to the terms of any temporary Global Note which (subject
to any applicable laws and regulations) shall be at least 40 days
after the issue date of a temporary Global Note (the "EXCHANGE
DATE"), the Securities represented by such temporary Global Note
may be exchanged for definitive Securities (subject to the second
succeeding paragraph) or Securities to be represented thereafter
by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary
Global Note shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, at its
principal office in London (or at such other place specified
outside the United States pursuant to Section 3.01) and following
such surrender, the Trustee shall (1) endorse the temporary
Global Note to reflect the reduction of its principal amount by
an equal aggregate principal amount of such Security, (2) endorse
the applicable permanent Global Note, if any, to reflect the
initial amount, or an increase in the amount of Securities
represented thereby, (3) manually authenticate such definitive
Securities (including any permanent Global Note), (4) deliver
such definitive Securities to the Holder thereof or, if such
definitive Security is a permanent Global Note, deliver such
permanent Global Note to the Common Depositary to be held outside
the United States for the accounts of the Euro-clear Operator or
CEDEL, as the case may be, for credit to the respective accounts
at Euro-clear Operator or CEDEL, as the case may be, designated
<PAGE>
26
by or on behalf of the beneficial owners of such Securities (or
to such other accounts as they may direct) and (5) redeliver such
temporary Global Note to the Common Depositary, unless such
temporary Global Note shall have been cancelled in accordance
with Section 3.08 hereof; provided, however, that, unless
otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note
shall be accompanied by a certificate dated the Exchange Date or
a subsequent date (or, in the event that an Interest Payment Date
occurs prior to the Exchange Date, dated such Interest Payment
Date) and signed by the Euro-clear Operator, as to the portion of
such temporary Global Note held for its account then to be
exchanged for definitive Securities (including any permanent
Global Note), and a certificate dated the Exchange Date or a
subsequent date (or, in the event that an Interest Payment Date
occurs prior to the Exchange Date, dated such Interest Payment
Date) and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for
definitive Securities (including any permanent Global Note), each
substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit
B hereto of the Euro-clear Operator or CEDEL, as the case may be,
shall be based on certificates of the account holders listed in
the records of the Euro-clear Operator or CEDEL, as the case may
be, as being entitled to all or any portion of the applicable
temporary Global Note. An account holder of the Euro-clear
Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an
interest in definitive Securities (including any permanent Global
Note) shall instruct the Euro-clear Operator or CEDEL, as the
case may be, to request such exchange on its behalf and shall
deliver to the Euro-clear Operator or CEDEL, as the case may be,
a certificate substantially in the form of Exhibit A hereto and
dated no earlier than 10 days prior to the Exchange Date (or, in
the event that an Interest Payment Date occurs prior to the
Exchange Date, no earlier than 10 days prior to such Interest
Payment Date). Until so exchanged, temporary Global Notes shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities (including any permanent
Global Note) of the same series authenticated and delivered
hereunder, except as to payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator
or CEDEL of any certificate substantially in the form of Exhibit
B hereto may be relied upon by the Company and the Trustee as
conclusive evidence that a corresponding certificate or
certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of
this Indenture.
On or prior to the Exchange Date, the Company shall
deliver to the Trustee definitive Securities in an aggregate
principal amount equal to the principal amount of such temporary
Global Note, executed by the Company. At any time, on or after
the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the
request of or on behalf of the beneficial owner, a Security
represented by a temporary Global Note or a permanent Global
Note, as the case may be, may be exchanged, in whole or from time
to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each
portion of such temporary Global Note or such permanent Global
Note, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of<PAGE>
27
a like Stated Maturity and with like terms and conditions, as the
portion of such temporary Global Note or such permanent Global
Note to be exchanged, which, unless the Securities of the series
are not issuable both as Bearer Securities and as Registered
Securities, as contemplated by Section 3.01, shall be in the form
of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided, however, that definitive Bearer Securities shall be
delivered in exchange for a portion of the temporary Global Note
or the permanent Global Note only in compliance with the
requirements of the second preceding paragraph. On or prior to
the thirtieth day following receipt by the Trustee of such notice
with respect to a Security, or, if such day is not a Business
Day, the next succeeding Business Day, the temporary Global Note
or the permanent Global Note, as the case may be, shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without
charge following such surrender, upon the request of the
Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the
permanent Global Note to reflect the reduction of its principal
amount by the aggregate principal amount of such Security, (2)
cause the terms of such Security and Coupons, if any, to be
entered on a definitive Security, (3) manually authenticate such
definitive Security, and (4) if a Bearer Security is to be
delivered, deliver such definitive Security outside the United
States to the Euro-clear Operator or CEDEL, as the case may be,
for or on behalf of the beneficial owner thereof, in exchange for
a portion of such temporary Global Note or the permanent Global
Note.
Unless otherwise specified in such temporary Global
Note or the permanent Global Note, any such exchange shall be
made free of charge to the beneficial owners of such temporary
Global Note or the permanent Global Note, except that a Person
receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in
person at the offices of the Euro-clear Operator or CEDEL.
Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary Global Note or the permanent
Global Note shall be delivered only outside the United States.
Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior
to the Exchange Date, a permanent Global Note or definitive
Bearer Securities, as the case may be, will not be issuable in
respect of such temporary Global Note or such portion thereof,
and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any
temporary Global Note or the permanent Global Note shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and tenor authenticated
and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such
temporary Global Note on an Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date
shall be payable to the Euro-clear Operator or CEDEL on such
Interest Payment Date upon delivery by the Euro-dear Operator or
CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons
who are the beneficial owners of such temporary Global Note on
such Interest Payment Date and who have each delivered to the
Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this
Indenture.
Any definitive Bearer Security authenticated and
delivered by the Trustee in exchange for a portion of a temporary
Global Note or the permanent Global Note shall not bear a coupon
for any interest which shall theretofore have been duly paid by
the Trustee to the Euro-clear Operator or CEDEL, or by the
Company to the Trustee in accordance with the provisions of this
Section 3.04.
<PAGE>
28
With respect to Exhibits A and B to this Indenture, the
Company may, in its discretion and if required or desirable under
applicable law, substitute one or more other forms of such
exhibits for such exhibits, eliminate the requirement that any or
all certificates be provided, or change the time that any
certificate may be required, provided that such substitute form
or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is
reasonably acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section
3.01 that the Registered Securities of a series are to be issued
in whole or in part in the form of one or more Global Notes, then
the Company shall execute and the Trustee shall, in accordance
with Section 3.03 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by
one or more Global Notes, (ii) shall be registered in the name of
the U.S. Depositary for such Global Note or Notes or the nominee
of such depositary, and (iii) shall bear a legend substantially
to the following effect: "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
such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Security is exchanged
in whole or in part for Securities in definitive form."
Notwithstanding any other provision of this Section or
Section 3.05, unless and until it is exchanged in whole or in
part for Registered Securities in definitive form, a Global Note
representing all or a portion of the Registered Securities of a
series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by
a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such
nominee to a successor U.S. Depositary for such series or a
nominee of such successor depositary.
If at any time the U.S. Depositary for the Securities
of a series notifies the Company that it is unwilling or unable
to continue as U.S. Depositary for the Securities of such series
or if at any time the U.S. Depositary for Securities of a series
shall no longer be a clearing agency registered and in good
standing under the Securities Exchange Act of 1934, as amended,
or other applicable statute or regulation, the Company shall
appoint a successor U.S. Depositary with respect to the
Securities of such series. If a successor U.S. Depositary for
the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes
aware of such condition, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will
authenticate and deliver, Registered Securities of such series in
definitive form in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
<PAGE>
29
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for
such Global Note or Notes.
If the Registered Securities of any series shall have
been issued in the form of one or more Global Notes and if an
Event of Default with respect to the Securities of such series
shall have occurred and be continuing, the Company will promptly
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Registered Securities of
such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or
Notes.
If specified by the Company pursuant to Section 3.01
with respect to Registered Securities of a series, the U.S.
Depositary for such series of Registered Securities may surrender
a Global Note for such series of Securities in exchange in whole
or in part for Registered Securities of such series in definitive
form on such terms as are acceptable to the Company and such
depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a
new Registered Security or Securities of the same series, of
any authorized denomination as requested by such Person in
an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the
aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered
Securities in definitive form, such Global Note shall be
cancelled by the Trustee. Securities issued in exchange for a
Global Note pursuant to this subsection (c) shall be registered
in such names and in such authorized denominations as the U.S.
Depositary for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Section 3.05. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the registers
maintained in such office and in any other office or agency of
the Company in a Place of Payment being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the<PAGE>
30
Company shall provide for the registration of Registered Secu-
rities and of transfers and exchanges of Registered Securities.
The Trustee is hereby appointed "SECURITY REGISTRAR" for the
purpose of registering Registered Securities and registering
transfers and exchanges of Registered Securities as herein
provided; provided, however, that the Company may appoint co-
Security Registrars.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee, one or more new Registered Securities
of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such
series and of a like Stated Maturity and with like terms and
conditions.
Except as otherwise provided in Section 3.04 and this
Section 3.05, at the option of the Holder, Registered Securities
of any series may be exchanged for other Registered Securities of
the same series of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section
3.01, the provisions of this Section 3.05(b) shall be applicable
to Securities of any series which are Bearer Securities. At the
option of the Holder thereof, to the extent permitted by law, any
Bearer Security of any series which by its terms is registrable
as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of
a like Stated Maturity and with like terms and conditions upon
surrender of such Bearer Security at the Corporate Trust Office
or at any other office or agency of the Company designated
pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be
surrendered with all unmatured Coupons and any matured Coupons in
default attached thereto. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if
the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall
be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 12.03,
interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered
at any such office or agency in exchange for a Registered
Security of the same series and of a like Stated Maturity and
with like terms and conditions after the close of business at
such office or agency on (i) any Regular Record Date and before<PAGE>
31
the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case
may be (or, if such Coupon is so surrendered with such Bearer
Security, such Coupon shall be returned to the Person so
surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Security or Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the
provisions of United States income tax laws and regulations
applicable to Securities in effect at the time of such exchange.
(c) Except as otherwise specified pursuant to Section
3.01, in no event may Registered Securities, including Registered
Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
(d) All Securities issued upon any transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered for such transfer
or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or
exchange of Securities except as provided in Section 3.04(b) or
3.06. The Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of
Securities, other than those expressly provided in this Indenture
to be made at the Company's own expense or without expense or
without charge to the Holders.
The Company shall not be required (i) to register,
transfer or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of
the transmission of a notice of redemption of Securities of such
series selected for redemption under Section 13.03 and ending at
the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 3.06. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
<PAGE>
32
If (i) any mutilated Security or any mutilated Coupon
with the Coupon Security to which it appertains (and all
unmatured Coupons attached thereto) is surrendered to the Trustee
at its Corporate Trust Office (in the case of Registered
Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft
of any Security or any Coupon, and there is delivered to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice
that such Security or Coupon has been acquired by a bona fide
purchaser, then the Company shall execute and upon Company
Request the Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Security or in exchange for the Coupon Security to which such
mutilated, destroyed, lost or stolen Coupon appertained, a new
Security of the same series of like Stated Maturity and with like
terms and conditions and like principal amount, bearing a number
not contemporaneously Outstanding, and, in the case of a Coupon
Security, with such Coupons attached thereto that neither gain
nor loss in interest shall result from such exchange or
substitution.
In case any such mutilated, destroyed, lost or stolen
Security or Coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, pay the amount due on such Security or Coupon in
accordance with its terms; provided, however, that principal of
(and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable
only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01
or except as otherwise provided in this Section 3.06, any
interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in respect thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued
pursuant to this Section shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
(a) Interest on any Registered Security which is
payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Person in whose name
such Registered Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to
the Regular Record Date. Unless otherwise specified as
contemplated by Section 3.01 with respect to the Securities of
any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01
or, at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address shall appear in
the Security Register or, if provided pursuant to Section 3.01,
by wire transfer to an account designated by the Registered
Holder.
<PAGE>
33
(b) Interest on any Coupon Security which is payable
and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the Holder of the Coupon which has
matured on such Interest Payment Date upon surrender of such
Coupon on such Interest Payment Date at the principal London
office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon
Security) which is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the
Holder of the Bearer Security upon presentation of such Bearer
Security and notation thereon on such Interest Payment Date at
the principal London office of the Trustee or at such other Place
of Payment outside the United States specified pursuant to
Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon
payable in Dollars, payment on such Bearer Security or Coupon
will be made by check drawn on a bank in The City of New York or,
if agreeable to the Trustee, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such
payment at the offices of all Paying Agents outside the United
States becomes illegal or is effectively precluded because of the
imposition of exchange controls or similar restrictions on the
full payment or receipt of such amounts in Dollars, the Company
will appoint an office or agent in the United States at which
such payment may be made. Unless otherwise specified pursuant to
Section 3.01, at the direction of the Holder of any Bearer
Security or Coupon payable in a Foreign Currency, payment on such
Bearer Security or Coupon will be made by a check drawn on a bank
outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States.
Except as provided in this paragraph, no payment on any Bearer
Security or Coupon will be made by mail to an address in the
United States or by wire transfer to an account in the United
States.
(c) Any interest on any Security which is payable but
is not punctually paid or duly provided for on any interest
Payment Date (herein called "DEFAULTED INTEREST") shall, if such
Security is a Registered Security, forthwith cease to be payable
to the Registered Holder on the relevant Regular Record Date by
virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency or Currency unit
in which the Securities of such series are payable (except
as otherwise specified pursuant to Sections 3.01 or 3.10)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the<PAGE>
34
date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which date shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the
Holders of such Registered Securities at their addresses as
they appear in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of
Bearer Securities of any series shall be payable pursuant to such
procedures as may be satisfactory to the Trustee in such manner
that there is no discrimination between the Holders of Registered
Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the
manner provided in Section 1.05 not more than 25 days and not
less than 20 days prior to the date of the proposed payment.
(e) Subject to the foregoing provisions of this
Section, each Security delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08. CANCELLATION.
Unless otherwise specified pursuant to Section 3.01 for
Securities of any series, all Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund
and all Coupons surrendered for payment or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to
the Trustee. All Registered Securities and matured Coupons so
delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured Coupons so delivered shall be held by
the Trustee and, upon instruction by the Company Order, shall be
cancelled or held for reissuance. Bearer Securities and
unmatured Coupons held for reissuance may be reissued only in
exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to<PAGE>
35
Section 3.05 or in replacement of mutilated, lost, stolen or
destroyed Bearer Securities of the same series and of like Stated
Maturity and with like terms and conditions or the related
Coupons pursuant to Section 3.06. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation
for all purposes of this Indenture and the Securities. The
Company may at any time deliver to the Trustee for cancellation
any Securities or Coupons previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company
has not issued, and all Securities or Coupons so delivered shall
be promptly cancelled by the Trustee. No Securities or Coupons
shall be authenticated in lieu of or in exchange for any
Securities or Coupons cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities and Coupons held by the Trustee shall be delivered to
the Company upon Company Request. The acquisition of any
Securities or Coupons by the Company shall not operate as a
redemption or satisfaction of the indebtedness represented
thereby unless and until such Securities or Coupons are
surrendered to the Trustee for cancellation. In the case of any
temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Securities represented thereby
has been exchanged, the certificate of destruction shall state
that all certificates required pursuant to Section 3.04 hereof
and substantially in the form of Exhibit B hereto, to be given by
the Euro-clear Operator or CEDEL, have been duly presented to the
Trustee by the Euro-clear Operator or CEDEL, as the case may be.
Permanent Global Notes shall not be destroyed until exchanged in
full for definitive Securities or until payment thereon is made
in full.
Section 3.09. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.01
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 3.10. CURRENCY OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) Except as otherwise specified pursuant to Section
3.01 for Bearer Securities of any series, payment of the
principal of (and premium, if any) and interest on Bearer
Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any
series not permitting the election provided for in paragraph (c)
below or the Holders of which have not made the election provided
for in paragraph (c) below, except as provided in paragraph (e)
below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made
in the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with
respect to the Registered Securities of any series that Holders
shall have the option, subject to paragraphs (e) and (f) below,
to receive payments of principal of (and premium, if any) and any
interest on such Registered Securities in any of the Currencies<PAGE>
36
which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business
on the Election Date immediately preceding the applicable payment
date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or
any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such
change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no
such change or election may be made with respect to payments to
be made on any Registered Security of such series with respect to
which an Event of Default has occurred or notice of redemption
has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have
delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above
has been provided for pursuant to Section 3.01, then not later
than the fourth Business Day after the Election Date for each
payment date, the Trustee will deliver to the Company a written
notice specifying, in the Currency in which each series of the
Registered Securities is payable, the respective aggregate
amounts of principal of (and premium, if any) and any interest on
the Registered Securities to be paid on such payment date,
specifying the amounts so payable in respect of the Registered
Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (c) above. If the
election referred to in paragraph (c) above has been provided for
pursuant to Section 3.01 and if at least one Holder has made such
election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate
Officer's Certificate in respect of the Currency payments to be
made on such payment date. The Currency amount receivable by
Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (c) above shall be determined
by the Company on the basis of the applicable Market Exchange
Rate in effect on the third Business Day (the "VALUATION DATE")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a
Foreign Currency, the ECU or any other Currency unit in which any
of the Securities are denominated or payable other than pursuant
to an election provided for pursuant to paragraph (c) above, then
with respect to each date for the payment of principal of (and
premium, if any) and any interest on the applicable Securities
denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such
Foreign Currency, the ECU or such other Currency unit was used
(the "CONVERSION DATE"), the Dollar shall be the Currency of
payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to
such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a Currency unit, the Dollar
Equivalent of the Currency Unit, in each case as determined by
the Currency Determination Agent, if any, or, if there shall not<PAGE>
36
be a Currency Determination Agent, then by the Trustee, in the
manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated
in any Currency shall have elected to be paid in another Currency
as provided in paragraph (c) above, and a Conversion Event occurs
with respect to such elected Currency, such Holder shall receive
payment in the Currency in which payment would have been made in
the absence of such election. If a Conversion Event occurs with
respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment
in Dollars as provided in paragraph (e) of this Section 3.10.
(g) The "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY"
shall be determined by the Currency Determination Agent, if any,
or, if there shall not be a Currency Determination Agent, then by
the Trustee, and shall be obtained for each subsequent payment
date by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Conversion Date.
(h) The "DOLLAR EQUIVALENT OF THE CURRENCY UNIT" shall
be determined by the Currency Determination Agent, if any, or, if
there shall not be a Currency Determination Agent, then by the
Trustee, and subject to the provisions of paragraph (i) below,
shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(i) For purposes of this Section 3.10 the following
terms shall have the following meanings:
A "COMPONENT CURRENCY" shall mean any Currency which,
on the Conversion Date, was a component Currency of the
relevant Currency unit, including, but not limited to, the
ECU.
A "SPECIFIED AMOUNT" of a Component Currency shall mean
the number of units of such Component Currency or fractions
thereof which were represented in the relevant Currency
unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single
Currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single
Currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be
a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more
Currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more Currencies
with appropriate Dollar equivalents at the Market Exchange
Rate on the date of such replacement equal to the Dollar
equivalent of the Specified Amount of such former Component
Currency at the Market Exchange Rate on such date, and such
amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If
after the Conversion Date of the relevant Currency unit,<PAGE>
38
including but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component
Currency of such Currency unit, the Specified Amount of such
Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect
to any payment date, and with respect to the Maturity shall
mean the record date (if within 16 or fewer days prior to
the Maturity) immediately preceding the Maturity, and with
respect to any series of Securities whose record date
immediately preceding the Maturity is more than 16 days
prior to the Maturity or any series of Securities for which
no record dates are provided with respect to interest
payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or
the Currency Determination Agent, if any, regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the
Company and all Holders of the Securities denominated or payable
in the relevant Currency. In the event of a Conversion Event
with respect to a Foreign Currency, the Company, after learning
thereof, will immediately give written notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Section 1.05 to the Holders) specifying
the Conversion Date. In the event of a Conversion Event with
respect to the ECU or any other Currency unit in which Securities
are denominated or payable, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the
manner provided in Section 1.05 to the Holders) specifying the
Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent
change in any Component Currency as set forth in the definition
of Specified Amount above, the Company, after learning thereof,
will similarly give written notice to the Trustee. The Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
(k) For purposes of any provision of the Indenture
where the Holders of Outstanding Securities may perform an Act
which requires that a specified percentage of the Outstanding
Securities of all series perform such Act and for purposes of any
decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on
the Securities of all series in respect of which moneys are to be
disbursed ratably, the principal of (and premium, if any) and
interest on the Outstanding Securities denominated in a Foreign
Currency will be the amount in Dollars based upon the Market
Exchange Rate for Securities of such series, as of the date for
determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination
by the Trustee, as the case may be.
<PAGE>
39
Section 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court
with respect to any obligation of the Company hereunder or under
any Security, it shall become necessary to convert into any other
Currency any amount in the Currency due hereunder or under such
Security, then such conversion shall be made at the Market
Exchange Rate as in effect on the date the Company shall make
payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur a
change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to
pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is equal to the amount in such other
Currency which, when converted at the Market Exchange Rate as in
effect on the date of payment or distribution, is the amount then
due hereunder or under such Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt
and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any
Security. In no event, however, shall the Company be required to
pay more in the Currency or Currency unit due hereunder or under
such Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due
hereunder or under such Security so that in any event the
Company's obligations hereunder or under such Security will be
effectively maintained as obligations in such Currency, and the
Company shall be entitled to withhold (or be reimbursed for, as
the case may be) any excess of the amount actually realized upon
any such conversion over the amount due and payable on the date
of payment or distribution.
Section 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in
Section 12.01, the Company hereby undertakes that upon
presentation and surrender of a permanent Global Note to the
Trustee (or to any other Person or at any other address as the
Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the
Trustee will authenticate and deliver to the bearer of such
permanent Global Note duly executed and authenticated definitive
Securities with the same issue date and maturity date as set out
in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Securities of any
series (if all series issued under this Indenture are not to be
affected), shall upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of
transfer or exchange of such Securities herein expressly provided
for and rights to receive payments of principal (and premium, if
any) and interest on such Securities) and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
<PAGE>
40
(1) either
(A) all Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than
(i) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.06, (ii) Coupons appertaining
to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived under Section 3.05, (iii)
Coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section
13.06, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 12.04) have been delivered to
the Trustee for cancellation; or
(B) all Securities and the Coupons, if any, of such
series not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice by the
Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) of this
subclause (B), has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to
Sections 3.01 or 3.10) sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be; provided, however, that in the event that a
petition for relief under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law
is filed with respect to the Company within 91 days after
such deposit and the Trustee is required to return the
deposited money to the Company, the obligations of the
Company under this Indenture with respect to such Securities
shall not be deemed terminated or discharged;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
<PAGE>
41
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with
respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14, the obligations of the Company under Section 12.01,
and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of
Section 12.04, shall survive. If, after the deposit referred to
in Section 4.01 has been made, (x) the Holder of a Security is
entitled to, and does, elect pursuant to Section 3.10(c), to
receive payment in a Currency other than that in which the
deposit pursuant to Section 4.01 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to
Section 3.10(c), then the indebtedness represented by such
Security shall be fully discharged to the extent that the deposit
made with respect to such Security shall be converted into the
Currency in which such payment is made.
Section 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of
Section 12.04, all money deposited with the Trustee pursuant to
Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and Coupons, if
any, and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. EVENTS OF DEFAULT.
"EVENT OF DEFAULT" wherever used herein with respect to
Securities of any series means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security or any payment with respect to the Coupons, if any,
of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
<PAGE>
42
(2) default in the payment of the principal of (and
premium, if any, on) any Security of such series at its
Maturity; or
(3) default in the making or satisfaction of any
sinking fund payment or analogous obligation, when and as
due by the terms of any Security of such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this
Indenture solely for the benefit of Securities of a series
other than such series), and continuance of such default or
breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
(5) default (i) in the payment of any scheduled
principal of or interest on any Indebtedness of the Company
or any Subsidiary of the Company (other than Securities of
such series), aggregating more than $20 million in principal
amount, when due after giving effect to any applicable grace
period or (ii) in the performance of any other term or
provision of any Indebtedness of the Company or any
Subsidiary of the Company (other than Securities of such
series) in excess of $20 million principal amount that
results in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have
been rescinded or annulled, or such Indebtedness shall not
have been discharged, within a period of 15 days after there
has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice
specifying such default or defaults and stating that such
notice is a "Notice of Default" hereunder; or
(6) the entry against the Company or any Subsidiary of
the Company of one or more judgments, decrees or orders by a
court having jurisdiction in the premises from which no
appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $20 million,
and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of 45 consecutive
days after the amount thereof is due without a stay of
execution and there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such
series, a written notice specifying such entry and
continuance of such judgment, decree or order and stating
that such notice is a "Notice of Default" hereunder; or
(7) any case or proceeding shall be commenced against
the Company seeking to have an order for relief entered
against it or to adjudicate it as bankrupt or insolvent or<PAGE>
43
seeking reorganization, liquidation, dissolution, winding-
up, arrangement, composition of its debts or other relief
under any applicable bankruptcy, insolvency, reorganization
or other similar law of any jurisdiction, domestic or
foreign, now or hereafter existing, or a receiver,
custodian, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial
part of its property shall be appointed; and such case or
proceeding (A) results in the entry of an order for relief
or similar order against the Company, or (B) shall continue
unstayed and in effect for a period of 60 consecutive days;
or
(8) the commencement by the Company of a voluntary
case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law of any
jurisdiction, domestic or foreign, now or hereafter
existing, or the consent by the Company to, or the
application by the Company for, the entry of an order for
relief in respect of the Company in an involuntary case or
proceeding under any such law or the appointment of a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of its creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(9) any other Event of Default provided with respect
to Securities of that series pursuant to Section 3.01.
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if any Securities of
such series are Discount Securities, such portion of the
principal amount of such Discount Securities as may be specified
in the terms of such Discount Securities) of all the Securities
of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment
of such amount in the Currency in which such Securities are
denominated (except as otherwise provided pursuant to Sections
3.01 or 3.10), all obligations of the Company in respect of the
payment of principal of the Securities of such series shall
terminate.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum in the Currency in which such Securities are<PAGE>
44
denominated (except as otherwise provided pursuant to
Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all
Securities or all overdue payments with respect to
any Coupons of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest on each Security of such series or upon
overdue payments on any Coupons of such series at
the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel; provided, however, that all
sums payable under this clause (D) shall be paid
in Dollars;
and
(2) All Events of Default with respect to Securities
of such series, other than the nonpayment of the principal
of Securities of such series which has become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment
of interest on any Security or any payment with respect to
any Coupons when such interest or payment becomes due and
payable and such default continues for a period of 30 days,
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof, or
(3) default is made in the making or satisfaction of
any sinking fund payment or analogous obligation when and as
due by the terms of the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or of such Coupons, the
whole amount then due and payable on such Securities or matured
Coupons, for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be
legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at
the Overdue Rate; and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of<PAGE>
45
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and
Coupons, and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company
or any other obligor upon such Securities and Coupons wherever
situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities and Coupons of such series by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, relative to the Company or any
other obligor upon the Securities and Coupons, if any, of a
particular series or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether
the principal of such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise
and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim or claims for the whole
amount of principal (or, if the Securities of such series
are Discount Securities, such portion of the principal
amount as may be due and payable with respect to such series
pursuant to a declaration in accordance with Section 5.02)
(and premium, if any) and interest owing and unpaid in
respect of the Securities and Coupons of such series and to
file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of such Securities
and Coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any receiver, assignee, trustee, custodian, liquidator,
sequestrator (or other similar official) in any such proceeding
is hereby authorized by each such Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to<PAGE>
46
the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under
Section 6.07.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or any Coupons
of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or
the Securities and the Coupons, if any, of any series may be
prosecuted and enforced by the Trustee without the possession of
any of such Securities or Coupons or the production thereof in
any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities or Coupons in respect of which such judgment has been
recovered.
Section 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (and premium, if any) or
interest, upon presentation of the Securities or Coupons of any
series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.07.
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Securities or Coupons of such series, in respect of
which or for the benefit of which such money has been
collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities or Coupons for principal (and premium, if any)
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 5.07. LIMITATION ON SUITS.
<PAGE>
47
No Holder of any Security or Coupon of any series shall
have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of such series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holders or of
the Holders of Outstanding Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders. For the protection
and enforcement of the provisions of this Section 5.07, each and
every Holder of Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can
be given at law or in equity.
Section 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security or of any Coupon shall have the right,
which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Section 3.07)
interest on such Security or Coupon on the respective Stated
Maturity or Maturities expressed in such Security or Coupon (or,
in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
<PAGE>
48
Section 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their
former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in
this Indenture, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or acquiescence therein. Every right
and remedy given by this Indenture or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided, that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or expose the Trustee to
personal liability;
(2) subject to the provisions of Section 6.01, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Securities of such series not
joining in any such direction; and
<PAGE>
49
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of any such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security of such series, or in the
making or satisfaction of any sinking fund payment or
analogous obligation with respect to the Securities of such
series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to exist
with respect to the Securities of such series, and any Event of
Default arising therefrom shall be deemed to have been cured with
respect to the Securities of such series, for every purpose of
this Indenture, but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.14. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 5.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
<PAGE>
50
ARTICLE SIX
THE TRUSTEE
Section 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.02. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to
Securities of any series, and a Responsible officer has actual
knowledge of such default, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in
Section 5.01(5) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days
after the occurrence thereof and if such default is corrected
within such period, the Trustee may conclude, consistent with the
Trust Indenture Act, that notice of such a default need not be
provided to such Holders of Securities. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
Section 6.03. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.01, and
subject to Sections 315(a) through (d) of the Trust Indenture
Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
<PAGE>
51
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of
Securities of any series pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
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 and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities or Coupons, if any, of any series.
The Trustee shall not be accountable for the use or application
by the Company of any Securities or the proceeds thereof. The
Trustee shall have no responsibility for the acts of omissions of
any other Trustee appointed hereunder, including any co-trustee.
Section 6.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying
Agent, the Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons, and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
<PAGE>
52
Section 6.06. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying
Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee in Dollars upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust or the performance of its
duties hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a claim
prior to the Securities and Coupons, if any, upon all property
and funds held or collected by the Trustee as such, except funds
held in trust for the payment of amounts due on the Securities
and Coupons.
If the Trustee incurs expenses or renders services
after an Event of Default specified in Section 5.01(7) or (8)
occurs, the expenses and compensation for the services will be
intended to constitute expenses of administration under any
applicable bankruptcy or insolvency law.
Section 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall comply with the relevant provisions of the Trust
Indenture Act and this Indenture.
<PAGE>
53
Section 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series and a successor Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the
retiring Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08
with respect to the Securities of any series after written
request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security of such series for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 with respect to the Securities of any series
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security of any series for at least six months may,
on behalf of himself and all others similarly situated, petition <PAGE>
54
any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee for the
Securities of such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders of such series and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series in the manner and to the
extent provided in Section 1.05 to the Holders of Securities of
such series. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a
successor Trustee with respect to all Securities, each such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee, but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more<PAGE>
55
(but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
any such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of any such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
Section 6.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and<PAGE>
56
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities. In case any Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Securities, in either
its own name or that of its predecessor Trustee, with the full
force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities or the
Coupons, if any), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Securities of a series remain
Outstanding, upon a Company Request, there shall be an
authenticating agent (the "AUTHENTICATING AGENT") appointed, for
such period as the Company shall elect, by the Trustee for such
series of Securities to act as its agent on its behalf and
subject to its direction in connection with the authentication
and delivery of each series of Securities for which it is serving
as Trustee. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by such Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee for such series or to the
Trustee's Certificate of Authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee for such series by an Authenticating Agent for such
series and a Certificate of Authentication executed on behalf of
such Trustee by an Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which any Authenticating Agent may
be merged or converted, or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent, provided such corporation shall<PAGE>
57
otherwise be eligible under this Section, without the execution
or filing of any paper or any further act on the part of the
Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to
the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14 with respect to one or more or
all series of Securities, the Trustee for such series shall upon
Company Request appoint a successor Authenticating Agent, and the
Company shall provide notice of such appointment to all Holders
of Securities of such series in the manner and to the extent
provided in Section 1.05. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. The Trustee for the Securities of such
series agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 6.07.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication
in the following form:
This is one of the series of Securities issued under
the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By:[INSERT NAME OF AUTHENTICATING AGENT],
As Authenticating Agent
By:________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee for the Securities of each series:
<PAGE>
58
(1) semi-annually, not more than 15 days after a
Regular Record Date with respect to an Interest Payment Date
for the Registered Securities of such series (or on such
other semi-annual dates in each year as shall be established
as contemplated by Section 3.01 if the Securities of any
series do not bear interest payable on semi-annual Interest
Payment Dates and as shall comply with the requirements of
the Trust Indenture Act) a list, in such form as the Trustee
may reasonably require, containing all information in the
possession or control of the Company or any Paying Agent as
to the names and addresses of the Holders of Registered
Securities of such series as of a date not more than 15 days
prior to the time such information is furnished or caused to
be furnished,
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished or caused to be furnished, and
(3) such information concerning the Holders of Bearer
Securities which is known to the Company; provided that the
Company shall have no obligation to investigate any matter
relating to any Holder of a Bearer Security or a Coupon;
provided, however, that if and so long as the Trustee shall be
the Security Registrar for the Securities of any series, no such
list need be furnished with respect to the Securities of such
series.
Section 7.02. PRESERVATION OF INFORMATION;
COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with
other Holders with respect to their rights under this Indenture
or under the Securities, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by
receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of
either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders made pursuant to Section 312 of the Trust
Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
<PAGE>
59
Section 7.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year
(commencing with the first May 15 that occurs after the first
issuance of Securities pursuant to this Indenture), the Trustee
shall transmit to the Holders of Securities, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
a brief report if required by Section 313(a) of the Trust
Indenture Act, dated as of such May 15. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act and shall
transmit to Holders, in the manner and to the extent provided in
said Section 313(c), such other reports, if any, as may be
required pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.04. REPORTS BY COMPANY.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
and reports, and such summaries thereof and copies of portions
thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same shall be so required to be
filed with the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Securities of any series may
take any Act, the fact that the Holders of such specified
percentage have joined therein may be evidenced (a) by the
instrument or instruments executed by Holders in person or by
agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders
duly called and held in accordance with the provisions of Article
Nine, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Holders.
<PAGE>
60
Section 8.02. PROOF OF OWNERSHIP; PROOF OF EXECUTION
OF INSTRUMENTS BY HOLDER.
The ownership of Registered Securities of any series
shall be proved by the Security Register for such series or by a
certificate of the Security Registrar for such series.
The ownership of Bearer Securities shall be proved by
production of such Bearer Securities or by a certificate executed
by any bank or trust company, which certificate shall be dated
and shall state that on the date thereof a Bearer Security
bearing a specified identifying number or other mark was
deposited with or exhibited to the person executing such
certificate by the person named in such certificate, or by any
other proof of possession reasonably satisfactory to the Trustee.
The holding by the person named in any such certificate of any
Bearer Security specified therein shall be presumed to continue
for a period of one year unless at the time of determination of
such holding (1) another certificate bearing a later date issued
in respect of the same Bearer Security shall be produced, (2)
such Bearer Security shall be produced by some other person, (3)
such Bearer Security shall have been registered on the Security
Register, if, pursuant to Section 3.01, such Bearer Security can
be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and
9.05, proof of the execution of a writing appointing an agent or
proxy and of the execution of any instrument by a Holder or his
agent or proxy shall be sufficient and conclusive in favor of the
Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any notary
public or other officer authorized to take acknowledgements of
deeds, that the person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or
by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority.
The record of any Holders' meeting shall be proved in
the manner provided in Section 9.06.
The Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section so
long as the request is a reasonable one.
Section 8.03. PERSONS DEEMED OWNERS.
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61
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Registered
Security is registered as the owner of such Registered Security
for the purpose of receiving payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest, if any,
on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary. The
Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as
the absolute owner of such Bearer Security or Coupon for the
purposes of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Bearer
Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any
Holder, or upon his order, shall be valid, and, to the extent of
the sum or sums paid, effectual to satisfy and discharge the
liability for moneys payable upon such Security or Coupon.
Section 8.04. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any
Act by the Holders of the percentage in aggregate principal
amount of the Outstanding Securities specified in this Indenture
in connection with such Act, any Holder of a Security the number,
letter or other distinguishing symbol of which is shown by the
evidence to be included in the Securities the Holders of which
have consented to such Act may, by filing written notice with the
Trustee at the Corporate Trust Office and upon proof of ownership
as provided in Section 8.02, revoke such Act so far as it
concerns such Security. Except as aforesaid, any such Act taken
by the Holder of any Security shall be conclusive and binding
upon such Holder and, subject to the provisions of Section 5.08,
upon all future Holders of such Security and all past, present
and future Holders of Coupons, if any, appertaining thereto and
of any Securities and Coupons issued on transfer or in lieu
thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such
Security or Coupons or such other Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called
at any time and from time to time pursuant to the provisions of
this Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
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62
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of Article
Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.02; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Securities of any one or
more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
Section 9.02. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a
meeting of Holders of such series to take any action specified in
Section 9.01, to be held at such time or times and at such place
or places as the Trustee for such series shall determine. Notice
of every meeting of the Holders of any series, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to
Holders of such series in the manner and to the extent provided
in Section 1.05. Such notice shall be given not less than 20
days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal
amount of the Outstanding Securities of a series or of all
series, as the case may be, shall have requested the Trustee for
such series to call a meeting of Holders of any or all such
series by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 20 days after
the receipt of such request, then the Company or such Holders may
determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized
in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a
Person shall be (a) a Holder of a Security of the series with
respect to which such meeting is being held or (b) a Person
appointed by an instrument in writing as agent or proxy by such
Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives
of the Trustee for the series with respect to which such meeting
is being held and its counsel and any representatives of the
Company and its counsel.
Section 9.05. REGULATIONS.
Notwithstanding any other provisions of this Indenture,
the Trustee for any series may make such reasonable regulations
as it may deem advisable for any meeting of Holders of such
series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies, and in regard to the<PAGE>
63
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of such series as
provided in Section 9.03, in which case the Company or the
Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of
"Outstanding," at any meeting each Holder of a Security of the
series with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal
amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Securities of such series held
or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding
Securities of such series held by him or instruments in writing
duly designating him as the person to vote on behalf of Holders
of Securities of such series. Any meeting of Holders with
respect to which a meeting was duly called pursuant to the
provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be
held as so adjourned without further notice.
Section 9.06. VOTING.
The vote upon any resolution submitted to any meeting
of Holders with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Holders shall be
taken and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was transmitted as provided in Section
9.02. The record shall show the serial numbers of the Securities
voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
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64
Section 9.07. NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a
meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this
Indenture or of the Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the
"successor Person") shall be a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the
Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or
assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which
would not otherwise be permitted by this Indenture without
making effective provision whereby the Outstanding
Securities and any other indebtedness of the Company then
entitled thereto shall be equally and ratably secured with
any and all indebtedness and obligations secured thereby,
the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to
secure all Securities equally and ratably with (or prior to)
all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental inden-
ture comply with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with.<PAGE>
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Section 10.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Company with or merger of
the Company into any other Person, or any conveyance, transfer or
lease of the properties and assets of the Company substantially
as an entirety in accordance with Section 10.01, the successor
Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the
Company herein, and thereafter the predecessor Person shall be
relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Securities
and the Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all series,
stating that such covenants are expressly being included
solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all
series, stating that such Events of Default are expressly
being included solely to be applicable to such series); or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities of any series in
bearer form, registrable or not registrable, and with or
without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit the issuance of
Securities of any series in uncertificated form, provided
that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related Coupons in any material respect; or
<PAGE>
66
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
(i) shall become effective only when there is no Outstanding
Security or Coupon of any series created prior to the
execution of such supplemental indenture which is entitled
<PAGE>
69
to the benefit of such provision and as to which such
supplemental indenture would apply, or (ii) shall not apply
to any Security which is outstanding prior to the
effectiveness of such change or elimination; or
(6) to secure the Securities; or
(7) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Article Four or Fifteen, provided
that any such action pursuant to this clause (7) shall not
adversely affect the interests of the Holders of Securities
of such series or any other series of Securities or any
related Coupons in any material respect; or
(8) to establish the form or terms of Securities and
Coupons, if any, of any series as permitted by Sections 2.01
and 3.01; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
one or more series of Securities and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with
the provisions of this Indenture; provided that any such
action pursuant to this clause (10) shall not adversely
affect in any material respect the interests of the Holders
of Outstanding Securities or Coupons, if any, of any series
created prior to the execution of such supplemental
indenture and as to which such supplemental indenture would
apply.
Section 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture voting
separately, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of Securities of each such series;
provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of
each such series affected thereby,
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67
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Security, or reduce
the principal amount thereof or the interest thereon or any
premium payable upon redemption thereof, or change the
Stated Maturity of or reduce the amount of any payment to be
made with respect to any Coupon, or change the Currency or
Currencies in which the principal of (and premium, if any)
or interest on such Security is denominated or payable, or
change the place where any such amount is payable, or reduce
the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, or
adversely affect the right of repayment or repurchase, if
any, at the option of the Holder, or reduce the amount of,
or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Security, or
impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer
Securities as provided in Section 12.03; or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any supplemental indenture, or the
consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided
for in this Indenture; or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 12.09, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security of each
series affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 12.09,
or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(7).
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture with respect to
one or more particular series of Securities and Coupons, if any,
or which modifies the rights of the Holders of Securities and
Coupons of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt securities and Coupons, if any,
of any other series.
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Section 11.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise in any material respect.
Section 11.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
and Coupons theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 11.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 11.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities and Coupons, if any, of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities and
Coupons of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities and Coupons of such series.
Section 11.07. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to
Section 11.02, the Company shall transmit, in the manner and to
the extent provided in Section 1.05, to all Holders of any series
of the Securities affected thereby, a notice setting forth in
general terms the substance of such supplemental indenture.
<PAGE>
69
ARTICLE TWELVE
COVENANTS
Section 12.01. PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST.
The Company will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities in
accordance with the terms of the Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section
3.01 with respect to any series of Securities or except as
otherwise provided in Section 3.06, any interest due on Bearer
Securities on or before Maturity shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If so provided in the terms of any series of Securities
established as provided in Section 3.01, the interest, if any,
due in respect of any temporary Global Note or permanent Global
Note, together with any additional amounts payable in respect
thereof, as provided in the terms and conditions of such
Security, shall be payable only upon presentation of such
Security to the Trustee for notation thereon of the payment of
such interest.
Section 12.02. OFFICER'S CERTIFICATE AS TO DEFAULT.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company (which on
the date hereof is the calendar year) ending after the date
hereof, an Officers' Certificate stating whether or not to the
best knowledge of the Company, the Company is in default in the
performance and observance of the terms, provisions and
conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder), and, if the
Company shall be in default, specifying all such defaults and the
nature and status thereof of which the signers may have
knowledge.
Section 12.03. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of
Payment for such series an office or agency where Securities of
that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City and State of New York, an office
or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
Coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
<PAGE>
70
outside the United States, an office or agency where Securities
of that series and related Coupons may be presented and
surrendered for payment (including payment of any additional
amounts payable on Securities of that series, if so provided
pursuant to Section 3.01); provided, however, that if the
Securities of that series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland, the Luxembourg Stock
Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of
that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency
where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee (in the
case of Registered Securities) and at the principal London office
of the Trustee (in the case of Bearer Securities), and the
Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company
in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars,
payment of principal of and any premium and interest on any
Bearer Security (including any additional amounts payable on
Securities of such series, if so provided pursuant to Section
3.01) shall be made at the office of the Company's Paying Agent
in the Borough of Manhattan, The City and State of New York, if
(but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate
different or additional offices or agencies to be maintained for
such purposes (in or outside of such Place of Payment), and may
from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice
to the Trustee of any such additional designation or rescission
of designation and any change in the location of any such
different or additional office or agency.
Section 12.04. MONEY FOR SECURITIES; PAYMENTS TO BE
HELD IN TRUST.
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If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and Coupons, if
any, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Securities and Coupons, it
will, on or prior to each due date of the principal (and premium,
if any) or interest on any Securities of such series, deposit
with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless any such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect
to any series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) comply with all provisions of the Trust Indenture
Act applicable to it as Paying Agent and
(2) during the continuance of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the
Securities of that series, and upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security or Coupon shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and
to the extent provided by Section 1.05, notice that such money<PAGE>
72
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 12.05. CORPORATE EXISTENCE.
Subject to Article Ten, the Company will do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 12.06. PURCHASE OF SECURITIES BY COMPANY.
If the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and
such stock exchange shall so require, the Company will not
purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds
120% of the mean of the nominal quotations of the Securities of
that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
Section 12.07. LIMITATION UPON MORTGAGES AND LIENS. .
The Company will not at any time directly or indirectly
create or assume and will not cause or permit a Subsidiary
directly or indirectly to create or assume, otherwise than in
favor of the Company or a Wholly-Owned Subsidiary, any mortgage,
pledge or other lien or encumbrance upon any Principal Facility
or any interest it may have therein or upon any stock of any
Subsidiary or any indebtedness of any Subsidiary to the Company
or any other Subsidiary, whether now owned or hereafter acquired,
without making effective provision (and the Company covenants
that in such case it will make or cause to be made, effective
provision) whereby the Outstanding Debt Securities and any other
indebtedness of the Company then entitled thereto shall be
secured by such mortgage, pledge, lien or encumbrance equally and
ratably with any and all other obligations and indebtedness
thereby secured, so long as any such other obligations and
indebtedness shall be so secured (provided, that for the purpose
of providing such equal and ratable security, the principal
amount of Outstanding Debt Securities of any series of Discount
Securities shall be such portion of the principal amount as may
be specified in the terms of that series); provided, however,
that the foregoing covenant shall not be applicable to the
following:
(a) (i) any mortgage, pledge or other lien or
encumbrance on any such property hereafter acquired or
constructed by the Company or a Subsidiary, or on which
property so constructed is located, and created prior to,
contemporaneously with or within 360 days after, such
acquisition or construction or the commencement of
commercial operation of such property to secure or provide
for the payment of any part of the purchase or construction
price of such property, or (ii) the acquisition by the
Company or a Subsidiary of such property subject to any
mortgage, pledge, or other lien or encumbrance upon such
property existing at the time of acquisition thereof,<PAGE>
73
whether or not assumed by the Company or such Subsidiary, or
(iii) any mortgage, pledge, or other lien or encumbrance
existing on the property, shares of stock or indebtedness of
a corporation at the time such corporation shall become a
Subsidiary, or (iv) any conditional sales agreement or other
title retention agreement with respect to any property
hereafter acquired or constructed; provided that, in the
case of clauses (i) through (iv) of this Section 12.07(a),
the lien of any such mortgage, pledge or other lien does not
spread to property owned prior to such acquisition or
construction or to other property thereafter acquired or
constructed other than additions to such acquired or
constructed property and other than property on which
property so constructed is located; and provided, further,
that if a firm commitment from a bank, insurance company or
other lender or investor (not including the Company, a
Subsidiary or an Affiliate of the Company) for the financing
of the acquisition or construction of property is made prior
to, contemporaneously with or within the 360-day period
hereinabove referred to, the applicable mortgage, pledge,
lien or encumbrance shall be deemed to be permitted by this
subsection (a) whether or not created or assumed within such
period;
(b) any mortgage, pledge or other lien or encumbrance
created for the sole purpose of extending, renewing or
refunding any mortgage, pledge, lien or encumbrance
permitted by subsection (a) of this Section; provided,
however, that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension,
renewal or refunding and that such extension, renewal or
refunding mortgage, pledge, lien or encumbrance shall be
limited to all or any part of the same property that secured
the mortgage, pledge or other lien or encumbrance extended,
renewed or refunded;
(c) liens for taxes or assessments or governmental
charges or levies not then due and delinquent or the
validity of which is being contested in good faith, and
against which an adequate reserve has been established;
liens on any such property created in connection with
pledges or deposits to secure public or statutory
obligations or to secure performance in connection with bids
or contracts; materialmen's, mechanics', carrier's,
workmen's, repairmen's or other like liens; or liens on any
such property created in connection with deposits to obtain
the release of such liens; liens on any such property
created in connection with deposits to secure surety, stay,
appeal or customs bonds; liens created by or resulting from
any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings; leases
and liens, rights of reverter and other possessory rights of
the lessor thereunder; zoning restrictions, easements,
rights-of-way or other restrictions on the use of real
property or minor irregularities in the title thereto; and
any other liens and encumbrances similar to those described
in this subsection, the existence of which does not, in the
opinion of the Company, materially impair the use by the
Company or a Subsidiary of the affected property in the
operation of the business of the Company or a Subsidiary, or
the value of such property for the purposes of such
business;<PAGE>
74
(d) any contracts for production, research or
development with or for the Government, directly or
indirectly, providing for advance, partial or progress
payments on such contracts and for a lien, paramount to all
other liens, upon money advanced or paid pursuant to such
contracts, or upon any material or supplies in connection
with the performance of such contracts to secure such
payments to the Government; and liens or other evidences of
interest in favor of the Government, paramount to all other
liens, on any equipment, tools, machinery, land or buildings
hereafter constructed, installed or purchased by the Company
or a Subsidiary primarily for the purpose of manufacturing
or producing any product or performing any development work,
directly or indirectly, for the Government to secure
indebtedness incurred and owing to the Government for the
construction, installation or purchase of such equipment,
tools, machinery, land or buildings. For the purpose of
this subsection (d), "Government" shall mean the Government
of the United States of America and any department, agency
or political subdivision thereof and the government of any
foreign country with which the Company or its Subsidiaries
is permitted to do business under applicable law and any
department, agency or political subdivision thereof;
(e) any mortgage, pledge or other lien or encumbrance
created after the date of this Indenture on any property
leased to or purchased by the Company or a Subsidiary after
that date and securing, directly or indirectly, obligations
issued by a State, a territory or a possession of the United
States, or any political subdivision of any of the
foregoing, or the District of Columbia, to finance the cost
of acquisition or cost of construction of such property,
provided that the interest paid on such obligations is
entitled to be excluded from gross income of the recipient
pursuant to Section 103(a)(1) of the Code (or any successor
to such provision) as in effect at the time of the issuance
of such obligations;
(f) any mortgage, pledge or other lien or encumbrance
on any property now owned or hereafter acquired or
constructed by the Company or a Subsidiary, or on which
property so owned, acquired or constructed is located, to
secure or provide for the payment of any part of the
construction price or cost of improvements of such property,
and created prior to, contemporaneously with or within 360
days after, such construction or improvement; provided, that
if a firm commitment from a bank, insurance company or other
lender or investor (not including the Company, a Subsidiary
or an Affiliate of the Company) for the financing of the
acquisition or construction of property is made prior to,
contemporaneously with or within the 360-day period
hereinabove referred to, the applicable mortgage, pledge,
lien or encumbrance shall be deemed to be permitted by this
subsection (f) whether or not created or assumed within such
period; and
(g) any mortgage, pledge or other lien or encumbrance
not otherwise permitted under this Section; provided, the
aggregate amount of indebtedness secured by all such
mortgages, pledges, liens or encumbrances, together with the
aggregate sale price of property involved in sale and
leaseback transactions not otherwise permitted except under
Section 12.08(a) does not exceed 15% of Consolidated
Stockholders' Equity.
Section 12.08. LIMITATION UPON SALE AND LEASEBACK
TRANSACTIONS.
The Company will not, and will not permit any
Subsidiary to, sell or transfer (except to the Company or one or
more Wholly-Owned Subsidiaries, or both) any Principal Facility
owned by it on the date of this Indenture with the intention of
taking back a lease of such property, other than a lease for a
temporary period (not exceeding 36 months) with the intent that
the use by the Company or such Subsidiary of such property will
be discontinued at or before the expiration of such period,
unless either:
<PAGE>
75
(a) the sum of the aggregate sale price of property
involved in sale and leaseback transactions not otherwise
permitted under this Section plus the aggregate amount of
indebtedness secured by all mortgages, pledges, liens
and encumbrances not otherwise permitted except under
Section 12.07(g) does not exceed 15% of Consolidated
Stockholders' Equity; or
(b) the Company within 120 days after the sale or
transfer shall have been made by the Company or by any such
Subsidiary applies an amount equal to the greater of (i) the
net proceeds of the sale of the Principal Facility sold and
leased back pursuant to such arrangement or (ii) the fair
market value of the Principal Facility sold and leased back
at the time of entering into such arrangement (which may be
conclusively determined by the Board of Directors of the
Company) to the retirement of Debt Securities or other
Funded Debt of the Company ranking on a parity with the Debt
Securities; provided, that the amount required to be applied
to the retirement of Outstanding Debt Securities or other
Funded Debt of the Company pursuant to this clause (b) shall
be reduced by (1) the principal amount (or, if the Debt
Securities of that series are Discount Securities, such
portion of the principal amount as may be specified in the
terms of that series) of any Debt Securities delivered
within 120 days after such sale to the Trustee for
retirement and cancellation, and (2) the principal amount of
any other Funded Debt of the Company ranking on a parity
with the Debt Securities voluntarily retired by the Company
within 120 days after such sale, whether or not any such
retirement of Funded Debt shall be specified as being made
pursuant to this clause (b). Notwithstanding the foregoing,
no retirement referred to in this clause (b) may be effected
by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision.
Section 12.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 12.05, 12.07 and 12.08 (and, if so specified pursuant to
Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the
Securities of any series, except as otherwise provided pursuant
to Section 3.01) with respect to the Securities of any series if
before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to
the extent expressly so waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
<PAGE>
76
ARTICLE THIRTEEN
REDEMPTION OF SECURITIES
Section 13.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article.
Section 13.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case
of Discount Securities, to permit the Holders to elect to
surrender for redemption) any Securities shall be evidenced by a
Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series
pursuant to Section 13.03, the Company shall, at least 60 days
before the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such
restrictions.
Section 13.03. SELECTION BY TRUSTEE OF SECURITIES TO
BE REDEEMED.
Except in the case of a redemption in whole of the
Bearer Securities or the Registered Securities of such series, if
less than all the Securities of any series are to be redeemed at
the election of the Company, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of such
series or any integral multiple thereof) of the principal amount
of Securities of such series in a denomination larger than the
minimum authorized denomination for Securities of such series
pursuant to Section 3.02 in the Currency in which the Securities
of such series are denominated. The portions of the principal
amount of Securities so selected for partial redemption shall be
equal to the minimum authorized denominations for Securities of
such series pursuant to Section 3.02 in the Currency in which the
Securities of such series are denominated or any integral
multiple thereof, except as otherwise set forth in the applicable
form of Securities. In any case when more than one Registered
Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered
Security of such series.
<PAGE>
77
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
Section 13.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or
at the Company's request, by the Trustee in the name and at the
expense of the Company, not less than 30 days and not more than
60 days prior to the Redemption Date to the Holders of Securities
of any series to be redeemed in whole or in part pursuant to this
Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. Failure
to give such notice, or any defect in such notice to the Holder
of any Security of a series designated for redemption, in whole
or in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Securities of such series are being redeemed
by the Company pursuant to provisions contained in this
Indenture or the terms of the Securities of such series or a
supplemental indenture establishing such series, if such be
the case, together with a brief statement of the facts
permitting such redemption,
(4) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed, and that interest thereon, if any, shall cease to
accrue on and after said date,
(6) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for
redemption must be accompanied by all Coupons maturing
subsequent to the date fixed for redemption, failing which
the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price,
<PAGE>
78
(7) the Place or Places of Payment where such
Securities are to be surrendered for payment of the
Redemption Price,
(8) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series
are not to be redeemed, and if such Bearer Securities may
be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to
Section 3.05(b) or otherwise, the last date on which such
exchanges may be made, and
(9) that the redemption is for a sinking fund, if such
is the case.
Section 13.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date for any Securities,
the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 12.04) an amount of
money in the Currency or Currencies in which such Securities are
denominated (except as provided pursuant to Section 3.01)
sufficient to pay the Redemption Price of such Securities or any
portions thereof which are to be redeemed on that date.
Section 13.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
any Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price in the Currency in
which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 or 3.10), and from
and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price; provided, however,
that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 12.03) and, unless
otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of Coupons for such interest; and
provided, further, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest on
Registered Securities which have a Stated Maturity on or prior to
the Redemption Date for such Securities shall be payable
according to the terms of such Securities and the provisions of
Section 3.07.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
If any Coupon Security surrendered for redemption shall
not be accompanied by all Coupons appertaining thereto maturing
on or after the Redemption Date, the Redemption Price for such
Coupon Security may be reduced by an amount equal to the face
amount of all such missing Coupons. If thereafter the Holder of
<PAGE>
79
such Coupon shall surrender to any Paying Agent outside the
United States any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted. The
surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them
and any Paying Agent harmless.
Section 13.07. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office
or agency of the Company as is specified pursuant to Section 3.01
(in the case of Registered Securities) and at an office of the
Trustee or such other office or agency of the Company outside the
United States as is specified pursuant to Section 3.01 (in the
case of Bearer Securities) with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company, the Security Registrar and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing,
and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, of like
tenor and form, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Security so surrendered, and, in the case of a Coupon Security,
with appropriate Coupons attached. In the case of a Security
providing appropriate space for such notation, at the option of
the Holder thereof, the Trustee, in lieu of delivering a new
Security or Securities as aforesaid, may make a notation on such
Security of the payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified pursuant to Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "MANDATORY SINKING FUND PAYMENT", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT". If provided for by the terms of
Securities of any series, the amount of any cash sinking fund
payment may be subject to reduction as provided in Section 14.02.
Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
<PAGE>
80
Section 14.02. SATISFACTION OF MANDATORY SINKING FUND
PAYMENTS WITH SECURITIES.
In lieu of making all or any part of a mandatory
sinking fund payment with respect to any Securities of a series
in cash, the Company may at its option, at any time no more than
sixteen months and no less than 45 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured Coupons,
if any, appertaining thereto) theretofore purchased or otherwise
acquired by the Company, except Securities of such series which
have been redeemed through the application of mandatory sinking
fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to
credit such obligations and stating that the Securities of such
series were originally issued by the Company by way of bona fide
sale or other negotiation for value, provided that such
Securities shall not have been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
Section 14.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities (unless a shorter
period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the Currency
or Currencies in which the Securities of such series are
denominated (except as provided pursuant to Section 3.01) and the
portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of such series pursuant to Section 14.02
and whether the Company intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment
or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such certificate, the sinking fund
payment due on the next succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of
such series subject to a mandatory sinking fund payment without
the right to deliver or credit Securities as provided in Section
14.02 and without the right to make any optional sinking fund
payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding
sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the
sinking fund payment date immediately following the date of such
payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or
<PAGE>
81
allocated by the Trustee (or by the Company if the Company is
acting as its own Paying Agent) to the redemption of Securities
shall be added to the next sinking fund payment received by the
Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.04) for
such series and, together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of
this Section. Any and all sinking fund moneys with respect to
the Securities of any particular series held by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.04) on the last sinking
fund payment date with respect to Securities of such series and
not held for the payment or redemption of particular Securities
of such series shall be applied by the Trustee (or by the Company
if the Company is acting as its own Paying Agent), together with
other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of
the Securities of such series at Maturity.
The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 13.03 and the Company shall cause
notice of the redemption thereof to be given in the manner
provided in Section 13.04. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 13.06.
On or before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as
its own Paying Agent, the Company shall segregate and hold in
trust as provided in Section 12.04) in cash a sum, in the
Currency or Currencies in which Securities of such series are
denominated (except as provided pursuant to Sections 3.01 or
3.10), equal to the principal and any interest accrued to the
Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of
the sinking fund for such series during the continuance of a
default in payment of interest, if any, on any Securities of such
series or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the
provisions hereof, the Trustee (or the Company, if the Company is
then acting as its own Paying Agent) shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in
accordance with the terms of this Article. 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 such sinking fund shall, during the
continuance of such default or Event of Default, be held as
security for the payment of the Securities and Coupons, if any,
of such series; provided, however, that in case such default or
Event of Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on or prior to
the next sinking fund payment date for the Securities of such
series on which such moneys may be applied pursuant to the
provisions of this Section.
<PAGE>
82
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.01, provision is made for the
defeasance of Securities of a series, and if the Securities of
such series are Registered Securities and denominated and payable
only in Dollars (except as provided pursuant to Section 3.01)
then the provisions of this Article shall be applicable except as
otherwise specified pursuant to Section 3.01 for Securities of
such series. Defeasance provisions, if any, for Securities
denominated in a Foreign Currency or Currencies or for Bearer
Securities may be specified pursuant to Section 3.01.
Section 15.02. COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at
any time, elect to have either Section 15.03 or Section 15.04
applied to the Outstanding Securities upon compliance with the
applicable conditions set forth below in this Article Fifteen.
Section 15.03. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in
Section 15.02 applicable to this Section 15.03 with respect to
Securities of any series and upon satisfaction of the applicable
conditions set forth below, the Company shall be deemed to have
been discharged from its obligations with respect to the
Outstanding Securities of such series (other than those specified
in the next sentence) (hereinafter, "defeasance"), such
defeasance to become effective on the date the applicable
conditions set forth below are satisfied. For this purpose, such
defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all
its other obligations under the Securities of such series and
this Indenture insofar as the Securities of such series are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of the
Securities of such series to receive, solely from the trust fund
described in Section 15.05 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if
any) and interest on the Securities of such series when such
payments are due, (B) the Company's obligations with respect to
such Securities under Sections 3.04, 3.05, 3.06, 12.03 and 12.04
and with respect to the Trustee under Section 6.07, (C) the
rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Fifteen. Subject to compliance
with the applicable conditions under this Article Fifteen, the
Company may exercise its option under this Section 15.03
notwithstanding the prior exercise of its option under Section
15.04.
Section 15.04. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in
Section 15.02 applicable to this Section 15.04 with respect to
Securities of any series and upon satisfaction of the applicable<PAGE>
83
conditions set forth below, (i) the Company shall be released
from its obligations under Sections 10.01, 12.07 and 12.08 with
respect to the Securities of such series (and, if so specified
pursuant to Section 3.01, any other obligation of the Company or
restrictive covenant set forth herein or added for the benefit of
such series pursuant to Section 3.01) and (ii) the occurrence of
an event specified in Section 5.01(4) (with respect to any of
Section 10.01, 12.07 or 12.08 (and, if so specified pursuant to
Section 3.01, any such other obligation of the Company or
restrictive covenant set forth herein or added for the benefit of
such series pursuant to Section 3.01)) shall not be deemed to be
an Event of Default with respect to the Securities of such series
(hereinafter, "covenant defeasance"), such covenant defeasance to
become effective on the date the applicable conditions set forth
below are satisfied. For this purpose, such covenant defeasance
means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such Section or Article, whether directly, or
indirectly by reason of any reference elsewhere herein to any
such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 15.05. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise indicated below, the following
shall be the conditions to application of either Section 15.03 or
Section 15.04 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.09 who shall agree
to comply with the provisions of this Article Fifteen
applicable to the Trustee) 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 Securities of such series, (a)
money in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment,
money in an amount, or (c) a combination of (a) and (b),
sufficient, in the written opinion (with respect to (b) and
(c)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, the
principal of (including, without limitation, any mandatory
sinking fund payments or analogous obligations) (and
premium, if any, on) and each installment of interest on the
Securities of such series on the Stated Maturity of such
principal (or premium, if any) or installment of interest in
accordance with the terms of this Indenture and of the
Securities of such series. For this purpose, "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<PAGE>
84
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.
(2) In the case of an election under Section 15.03,
the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (x) the Company 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 gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(3) In the case of an election under Section 15.04,
the Company 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 gain or loss
for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and
covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if
then listed on any securities exchange, will not be delisted
as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest as such
term is used in Section 6.08 and for purposes of the Trust
Indenture Act with respect to any securities of the Company.
(6) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall
have occurred and be continuing on the date of such deposit
or, insofar as subsections 5.01(7) and (8) are concerned, at
any time during the period ending on the 91st day after the
date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration
of such period).
(7) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to either the defeasance under Section 15.03 or the covenant
defeasance under Section 15.04 (as the case may be) have
been complied with.
<PAGE>
85
(9) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting
an investment company as defined in the Investment Company
Act of 1940, as amended, or such trust shall be qualified
under such act or exempt from regulation thereunder.
Section 15.06. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
COVENANT DEFEASANCE.
Subject to the provisions of the last paragraph of
Section 12.04, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (collectively, for purposes of this
Section 15.06 and Section 15.07, the "Trustee") pursuant to
Section 15.05 in respect of the Securities of any series shall be
held in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of the Securities of such
series, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 15.05
with respect to the Securities of any series or the principal and
interest received in respect of such U.S. Government Obligations
other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article Fifteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 15.05
with respect to the Securities of any series which, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance with respect to the
Securities of such series.
The provisions of the last paragraph of Section 12.04
shall apply to any money held by the Trustee or any Paying Agent
under this Article Fifteen that remains unclaimed for two years
after the Maturity of any series of Securities for which money or
Government Obligations have been deposited pursuant to Section
15.05.
Section 15.07. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply
any money in accordance with Section 15.06 by reason of any order
or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of
the series with respect to which such money was deposited shall
be revived and reinstated as though no deposit had occurred
pursuant to this Article Fifteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in<PAGE>
86
accordance with Section 15.06; provided, however, that if the
Company makes any payment of principal of (or premium, if any on)
or interest on any Securities of any series following the
reinstatement of the Company's obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or the
Paying Agent with respect to the Securities of such series.
<PAGE>
87
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
EQUIFAX INC.
By:________________________
Title:_____________________
Attest:
________________________
Title:
Seal
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:________________________
Title:_______________________
Attest:
________________________
Title:
Seal
<PAGE>
STATE OF _______________ )
: ss.:
COUNTY OF ______________)
On the _____ day of _____________, 1998, before me
personally came ___________________, to me known, who, being by
me duly sworn, did depose and say that he resides at
________________________________; that he is
_____________________________ of Equifax Inc., one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________
Notary Public
SEAL
<PAGE>
STATE OF _______________ )
: ss.:
COUNTY OF ______________)
On the ___ day of __________, 1998, before me personally
came ______________, to me known, who, being by me duly sworn,
did depose and say that he resides at _______________________;
that he is ______________ of The First National Bank of Chicago, one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________
Notary Public
SEAL
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
________________________
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and
except as set forth below ________________ principal
amount of the above captioned Securities held by you for our
account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v)
of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who
hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise the
Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the
Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of
resale during the restricted period (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i)
or (ii)) this is to further certify that such financial
institution has not acquired the Securities for the purpose of
resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the beneficial interest in the
temporary global Security held by you for our account in
accordance with your operating procedures if any applicable
statement herein is not correct on such date, and in the absence
of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to
________ principal amount of Securities held by you for our
account as to which we are not able to provide a certificate in
this form. We understand that exchange of such portion of the
<PAGE>
2
temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are
able to provide a certificate in this form.
We understand that this certificate is required in
connection with certain tax laws and regulations of the United
States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
"UNITED STATES PERSON" means any citizen or resident of
the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States federal income taxation regardless of its source. "UNITED
STATES" means the United States of America (including the States
and the District of Columbia) and its "POSSESSIONS" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
Dated:________________________, 199_
[To be dated no earlier than the
10th day before the Exchange Date
(or, in the event that an Interest
Payment Date occurs prior to the
Exchange Date, to be dated no
earlier than the 10th day before
such Interest Payment Date)]
By:_____________________________
As, or as agent for, the
beneficial owner(s) of
the portion of the
temporary global Note to
which this certificate
relates.
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
________________________
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on
certifications we have received in writing, by tested telex or by
electronic transmission from member organizations appearing in
our records as persons being entitled to a portion of the
principal amount set forth below (our "MEMBER ORGANIZATIONS")
substantially to the effect set forth in the Indenture as of the
date hereof, _________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v)
of the United States Treasury regulations) ("FINANCIAL
INSTITUTIONS") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who
hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its
own behalf or through its agent, that we may advise the Company
or the Company's agent that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the Treasury regulations thereunder), or
(iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted
period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury regulations), and in addition United
States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for the
purpose of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
We further certify (i) that we are not making available
for exchange or collection of any interest any portion of the
temporary Global Note excepted in such certifications and (ii)
that as of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange or collection
of any interest are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certificate is required in
<PAGE>
2
connection with certain tax laws and regulations of the United
States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
"UNITED STATES PERSON" means any citizen or resident of
the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States federal income taxation regardless of its source. "UNITED
STATES" means the United States of America (including the States
and the District of Columbia) and its "POSSESSIONS" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
Dated:________________________, 199_
[To be dated no earlier than the
Exchange Date (or, in the event that
an Interest Payment Date occurs prior
to the Exchange Date, to be dated such
Interest Payment Date)]
By:________________________
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
KILPATRICK STOCKTON LLP Attorneys at Law
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
E-mail: [email protected]
March 9, 1998
Direct Dial: 404.815.6175
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Re: Offering of $400,000,000 of Securities of Equifax Inc.
Ladies and Gentlemen:
We are delivering this opinion letter at your request in
connection with our representation of Equifax Inc. (the
"Company") with regard to the registration under the Securities
Act of 1933, as amended, on Form S-3 (the "Registration
Statement") relating to the contemplated offering from time to
time by the Company of up to Four Hundred Million Dollars
($400,000,000) aggregate offering price of one or more of the
following securities (together, the "Securities"): (i) unsecured
debt securities ("Debt Securities") consisting of debentures,
notes and/or other unsecured evidences of indebtedness in one or
more series; (ii) shares of preferred stock, par value $0.01 per
share ("Preferred Stock"), in one or more series; (iii) shares of
Preferred Stock represented by depositary shares ("Depositary
Shares"); (iv) shares of common stock, $1.25 par value per share
with common stock purchase rights attached ("Common Stock"); or
(v) warrants to purchase Debt Securities, Preferred Stock,
Depositary Shares or Common Stock ("Warrants").
The Debt Securities are to be issued from time to time
pursuant to the terms of an indenture ("Indenture") to be entered
into by and between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"). Shares of Preferred Stock
of each series represented by Depositary Shares will be deposited
under a separate Deposit Agreement (each, a "Deposit Agreement")
among the Company, the depositary named therein (the "Preferred
Stock Depositary") and the holders from time to time of the
Depositary Receipts. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into
between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"), all as shall be set forth in the
Prospectus Supplement relating to the Warrants being offered
<PAGE>
KILPATRICK STOCKTON LLP
Equifax Inc.
March 9, 1998
Page 2
pursuant thereto.
We are delivering this opinion in our capacity as counsel to
the Company solely in connection with the filing of the
Registration Statement and the registration of the Securities.
We have made such legal and factual examinations and inquiries as
we have deemed necessary or appropriate for purposes of this
opinion.
We have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
The opinions set forth in this opinion letter are limited to
the federal laws of the United States and the laws of the State
of Georgia.
Subject to the foregoing and the other matters set forth
herein, it is our opinion that:
(1) Assuming the Indenture is duly authorized, executed and
delivered by the Company and duly authorized, executed and
delivered by the Trustee, when the specific terms of a particular
Debt Security have been duly established in accordance with the
Indenture and applicable law, and any such Debt Security has been
duly authenticated by the Trustee and duly executed and delivered
on behalf of the Company against payment therefor in accordance
with the terms of the Indenture and as contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, such Debt Security will constitute a valid and
binding obligation of the Company.
(2) The Company has the authority pursuant to its Amended
and Restated Articles of Incorporation (the "Articles") to issue
up to Ten Million (10,000,000) shares of Preferred Stock. When a
series of Preferred Stock has been duly established in accordance
with the terms of the Articles and applicable law, and upon
adoption by the Board of Directors of the Company of a resolution
regarding the sale and issuance thereof in form and content as
required by applicable law, the Articles and the Company's bylaws
(the "Bylaws") and payment of consideration determined by the
Board of Directors to be adequate for shares of such series, and
upon issuance and delivery of shares of such series in the manner
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement and by such resolution in an amount not
<PAGE>
KILPATRICK STOCKTON LLP
Equifax Inc.
March 9, 1998
Page 3
exceeding the authorized but not issued and outstanding shares,
such shares of such series of Preferred Stock will be validly
issued, fully paid and nonassessable.
(3) When the specific terms of an issuance of Depositary
Shares have been duly established in accordance with a Deposit
Agreement duly authorized, executed and delivered by the parties
thereto and applicable law, and when the Depositary Receipts in
the form contemplated and authorized by the Deposit Agreement
have been duly executed and delivered by the Preferred Stock
Depositary and delivered to and paid for by the purchasers
thereof in the manner contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, and when all
corporate action necessary for the issuance of such Depositary
Shares and the underlying Preferred Stock has been taken and the
Company has received consideration determined by the Board of
Directors to be adequate for the issuance thereof, such
Depositary Shares will be validly issued and will entitle the
holders thereof to the rights specified in the Depositary
Receipts and such Deposit Agreement for such Depositary Receipts.
(4) The Company has authority pursuant to its Articles to
issue up to Three Hundred Million (300,000,000) shares of Common
Stock. Upon adoption by the Board of Directors of the Company of
a resolution regarding the sale and issuance thereof in form and
content as required by applicable law, the Articles and the
Bylaws, and payment of consideration determined by the Board of
Director to be adequate for such shares, and upon issuance and
delivery of such shares in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement and by such resolution in an amount not exceeding the
authorized but not issued and outstanding shares, such shares of
Common Stock will be validly issued, fully paid and
nonassessable.
(5) Assuming the Warrant Agreement is duly authorized,
executed and delivered by the Company and by the Warrant Agent,
when the specific terms of a particular issuance of Warrants have
been duly established by such Warrant Agreement and the Warrants
duly authenticated by the Warrant Agent and duly executed and
delivered by the Company against payment therefor in accordance
with the terms of the Warrant Agreement and as contemplated by
the Registration Statement and/or the applicable Prospectus
Supplement, the Warrants will constitute valid and binding
<PAGE>
KILPATRICK STOCKTON LLP
Equifax Inc.
March 9, 1998
Page 4
obligations of the Company.
The opinions set forth in clauses (1) and (5) above are
subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors; (ii) the effect of general
principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; and (iii)
the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification
of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public
policy.
To the extent that the obligations of the Company under the
Indenture may be dependent upon such matters, we assume for
purposes of this opinion that the Trustee is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by the Indenture; that
the Indenture constitutes the legal, valid and binding obligation
of the Trustee, enforceable against the Trustee in accordance
with its terms; that the Trustee is in compliance, generally and
with respect to acting as a trustee under the Indenture, with all
applicable laws and regulations; and that the Trustee has the
requisite organizational and legal power and authority to perform
its obligations under the Indenture.
To the extent that the obligations of the Company under each
Deposit Agreement may be dependent upon such matters, we assume
for purposes of this opinion that the Preferred Stock Depositary
is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the Preferred
Stock Depositary is duly qualified to engage in the activities
contemplated by the Deposit Agreement; that the Deposit Agreement
constitutes the legal, valid and binding obligation of the
Preferred Stock Depositary, enforceable against the Preferred
Stock Depositary in accordance with its terms; that the Preferred
Stock Depositary is in compliance, generally and with respect to
acting as a Preferred Stock Depositary under the Deposit
Agreement, with all applicable laws and regulations; and that the
<PAGE>
KILPATRICK STOCKTON LLP
Equifax Inc.
March 9, 1998
Page 5
Preferred Stock Depositary has the requisite organizational and
legal power and authority to perform its obligations under the
Deposit Agreement.
To the extent that the obligations of the Company under each
Warrant Agreement may be dependent upon such matters, we assume
for purposes of this opinion that the Warrant Agent is duly
organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Warrant Agent is
duly qualified to engage in the activities contemplated by the
Warrant Agreement; that the Warrant Agreement constitutes the
legal, valid and binding obligation of the Warrant Agent,
enforceable against the Warrant Agent in accordance with its
terms; that the Warrant Agent is in compliance, generally and
with respect to acting as a Warrant Agent under the Warrant
Agreement, with all applicable laws and regulations; and that the
Warrant Agent has the requisite organizational and legal power
and authority to perform its obligations under the Warrant
Agreement.
This opinion letter is provided to the Company for its
exclusive use solely in connection with the filing of the
Registration Statement, and may not be relied upon by any other
person or for any other purpose without prior written consent.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the prospectus included therein. In
giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
KILPATRICK STOCKTON LLP
By: /s/ Larry D. Ledbetter
Larry D. Ledbetter,
Partner
LDL/syw
EXHIBIT 12
EQUIFAX INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(in thousands)
<TABLE>
<CAPTION>
Years Ended December 31
(Unaudited)
-----------------------
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations before 144,269 110,801 193,538 223,140 262,549 323,138
income taxes and accounting changes
Add:
Capitalized interest - - - - - -
Debt issuance costs & commitment fees 618 676 687 1,027 724 872
Interest expense 3,031 8,742 12,986 15,342 16,439 20,797
Imputed interest on operating leases 7,152 6,172 7,605 9,704 10,087 10,484
------- ------- ------- ------- -------- -------
Earnings, as adjusted 155,070 126,391 214,816 249,213 289,799 355,291
======= ======= ======= ======= ======== =======
Fixed charges:
Capitalized interest - - - - - -
Debt issuance costs & commitment fees 618 676 687 1,027 724 872
Interest expense 3,031 8,742 12,986 15,342 16,439 20,797
Imputed interest on operating leases 7,152 6,172 7,605 9,704 10,087 10,484
------- ------- ------- ------- -------- -------
Total fixed charges 10,801 15,590 21,278 26,073 27,250 32,153
======= ======= ======= ======= ======== =======
Ratio of earnings to fixed charges 14.4 8.1 10.1 9.6 10.6 11.1
==== ==== ==== === ==== ====
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent pubic accounts, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of our report
dated February 14, 1997 included in Equifax Inc.'s Annual Report on Form
10-K for the year ended December 31, 1996 and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 3, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
---------------------------------------------------------
(Name, address and telephone number of agent for service)
--------------------------
EQUIFAX INC.
---------------------------------------------------
(Exact name of obligor as specified in its charter)
Georgia 57-0401110
- ------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Debt Securities
-------------------------------
(Title of Indenture Securities)
<PAGE>
Item 1. GENERAL INFORMATION. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of
the trustee now in effect.*
2. A copy of the certificates of authority
of the trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National
Bank of Chicago, a national banking association
organized and existing under the laws of the United
States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City
of Chicago and State of Illinois, on the 4th day of
March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
Steven M. Wagner
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 16 of the Form T-1 of
The First National Bank of Chicago, filed as Exhibit 25.1 to the
Registration Statement on Form S-3 of SunAmerica Inc. filed with
the Securities and Exchange Commission on October 25, 1996
(Registration No. 333-14201).
3<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between
Equifax Inc. and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Steven M. Wagner
Steven M. Wagner
Vice President
4<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97
Address: One First National Plaza, Ste 0303 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount
outstanding as of the last business day of the quarter.
<TABLE>
<CAPTION>
SCHEDULE RC--BALANCE SHEET
C400
Dollar Amounts in -----------------------------
Thousands RCFD BIL MIL THOU
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin <F1>................................ 0081 4,499,157 1.a.
b. Interest-bearing balances <F2>......................................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell ................................................................................... 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) ....... RCFD ........... 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses ............................ RCFD ........... 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve ................................ RCFD............ 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D) ...................................................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases) ................................. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M) ............................................. 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ........................................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding ............................. 2155 614,921 9.
10. Intangible assets (from Schedule RC-M) ................................................... 2143 277,105 10.
11. Other assets (from Schedule RC-F) ........................................................ 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).................................................. 2170 56,108,875 12.
</TABLE>
_________
[FN]
<F1> Includes cash items in process of collection and unposted debits.
<F2> Includes time certificates of deposit not held for trading.
5<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97
Address: One First National Plaza, Ste 0303 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
------------------ ------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) ...................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1) ....................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing ............................................. RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................................ RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................... RCFN 6631 352,399 13.b.1
(2) Interest-bearing.............................................. RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: ...................................................... RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........................... RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less ................... RCFD 2332 2,608,057 16.a
b. With a remaining maturity of than one year through three years... A547 379,893 16.b
. c. With a remaining maturity of more than three years .............. A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ............. RCFD 2920 614,921 18
19. Subordinated notes and debentures (2) ............................... RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) .............................. RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20) ...................... RCFD 2948 51,718,600 21
22. Not applicable ....................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ................... RCFD 3838 0 23
24. Common stock .................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves............................. RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................ RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments ............. RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27) ............... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28) ... RCFD 3300 56,108,875 29
</TABLE>
<TABLE>
<CAPTION>
<S> <S> <S> <S> <C> <C> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. RCFD 6724 . N/A M.1
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
_____________________________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
