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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) or
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 11, 1995
ALCO STANDARD CORPORATION
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(Exact name of registrant as specified in its charter)
OHIO File No. 1-5964 23-0334400
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(State or other (Commission File (IRS Employer
jurisdiction of Number) (Identification
incorporation Number)
P.O. Box 834, Valley Forge, Pennsylvania 19482
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Registrant's telephone number, including area code: (610)296-8000
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Not Applicable
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(Former name or former address, if changed since last report
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Item 5. Other Events
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The Registrant is filing this Report Form 8-K in order to file certain
exhibits with the Securities and Exchange Commission for incorporation by
reference into Registration Statement No.33-64177.
Item 7. Financial Statements, Pro Forma Financial Information
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and Exhibits.
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(c) Exhibits
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(1) Underwriting Agreement dated December 6, 1995 between
Alco Standard Corporation and Morgan Stanley & Co. Incorporated, Goldman Sachs &
Co., Lehman Brothers Inc. and Prudential Securities Incorporated.
(1.1) Terms Agreement dated December 6, 1995 between Alco
Standard Corporation and Morgan Stanley & Co. Incorporated, Goldman Sachs & Co.,
Lehman Brothers Inc. and Prudential Securities Incorporated.
(4) Indenture dated December 11, 1995 between Alco
Standard Corporation and First Fidelity Bank, National Association.
(4.1) Global Certificates for $300,000,000 6.75% Bonds due
December 1, 2025.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALCO STANDARD CORPORATION
By:/s/ Michael J. Dillon
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Michael J. Dillon
Vice President and Controller
Dated: December 12, 1995
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Index to Exhibits
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(1) Underwriting Agreement dated December 6, 1995 between Alco Standard
Corporation and Morgan Stanley & Co. Incorporated, Goldman Sachs & Co., Lehman
Brothers Inc. and Prudential Securities Incorporated.
(1.1) Terms Agreement dated December 6, 1995 between between Alco Standard
Corporation and Morgan Stanley & Co. Incorporated, Goldman Sachs & Co., Lehman
Brothers Inc. and Prudential Securities Incorporated.
(4) Indenture dated December 11, 1995 between Alco Standard Corporation and
First Fidelity Bank, National Association.
(4.1) Global Certificates for $300,000,000 6.75% Bonds due December 1, 2025.
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EXHIBIT 1
UNDERWRITING AGREEMENT
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December 6, 1995
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
C/O MORGAN STANLEY & CO. INCORPORATED,
1585 BROADWAY,
NEW YORK, NEW YORK 10036.
Dear Sirs:
1. Introductory. From time to time Alco Standard Corporation, an Ohio
corporation (the "Company"), proposes to enter into one or more Terms Agreements
(individually "Terms Agreement" and collectively "Terms Agreements") in the form
of Exhibit A hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firm or firms named in Schedule I to the
applicable Terms Agreement (each such firm is herein called an "Underwriter" and
such firms collectively are herein called "Underwriters" with respect to such
Terms Agreement and the securities specified therein) or pursuant to delayed
delivery contracts as hereinafter provided, certain of its debt securities
("Securities"), all as specified in such Terms Agreement (with respect to each
such Terms Agreement, such Securities are herein called "Purchased Securities").
Securities are herein designated as to be purchased by Underwriters or pursuant
to delayed delivery contracts by use of the terms "Underwriters" or "Contract,"
respectively. The terms and rights of any particular issuance of Purchased
Securities shall be as specified in the applicable Terms Agreement and in the
indenture (the "Indenture") identified in such Terms Agreement. Each Terms
Agreement shall constitute an agreement by the Company and each Underwriter to
be bound by all of the provisions of this Agreement.
2. Obligations of the Company and the Underwriters. Particular sales
of Purchased Securities may be made from time to time to the Underwriter or
Underwriters of such Purchased Securities (including one or more of you) for
whom the firm or firms designated as representatives in the Terms Agreement with
respect to such Purchased Securities may act as representatives (herein
collectively called "Representatives"). This Agreement shall not be construed as
an obligation of the Company to sell any of the Securities to the Underwriters
or as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Terms Agreement with respect to the Purchased Securities
specified therein. Each Terms Agreement shall specify (i) the names of the
Underwriters of such Purchased Securities, (ii) the names of the Representatives
of such Underwriters, (iii) the aggregate principal amount of the Purchased
Securities and the principal amount
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of such Purchased Securities to be purchased by each Underwriter, (iv) the
public offering price of such Purchased Securities, (v) the purchase price to
the Underwriters of such Purchased Securities, (vi) the place, time, date and
manner of delivery of such Purchased Securities and payment therefor and (vii)
whether any of the Purchased Securities may be sold by the Company to
institutional purchasers pursuant to delayed delivery contracts as hereinafter
provided ("Delayed Delivery Contracts") and, if so, the minimum principal amount
of such Purchased Securities that may be sold pursuant to any such Contract and
the maximum aggregate principal amount of such Purchased Securities that may be
sold pursuant to all such Contracts. The Terms Agreement shall also specify (to
the extent not set forth in the Indenture, registration statement and prospectus
with respect thereto) the terms of such Purchased Securities. A Terms Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or communication
by any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Terms Agreement shall be several and not joint.
3. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form-S-3 (No. 33-64177), including
a prospectus, relating to the Securities, has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement (including the documents
incorporated by reference therein), as amended on the date of the Terms
Agreement, is hereinafter referred to as the "Registration Statement," and
the prospectus (including the documents incorporated by reference
therein), as supplemented on the date of the Terms Agreement (the
"Prospectus Supplement") to reflect, among other things, the terms of the
Purchased Securities and the terms of the offering thereof, is hereinafter
referred to as the "Prospectus." Any reference to the Registration
Statement or Prospectus as amended or supplemented shall be deemed to
include any documents filed after the effective date of the Registration
Statement or date of the Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so
incorporated by reference.
(b) When each part of the registration statement relating to the
Securities became effective, such part and the prospectus included therein
contained all statements which were required to be stated therein in
accordance with the Securities Act of 1933 ("Act"), the Trust Indenture
Act of 1939 ("Trust Indenture Act") and the rules and regulations ("Rules
and Regulations") of the Commission thereunder and in all material
respects conformed to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations, and did not include any 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 not misleading; and on
the date of the Terms Agreement and at any and all times subsequent
thereto up to and including the Closing Date for the Purchased Securities
to which such Terms Agreement relates, the Registration Statement and the
Prospectus as then amended or supplemented will contain all statements
which are required to be stated therein in accordance with the Act, the
Trust Indenture Act and the Rules and Regulations and in all material
respects will conform to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and will not include any 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; except that the foregoing does not apply to statements in or
omissions from any such documents that are based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
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(c) Each document or portion thereof incorporated by reference in
the Prospectus conformed, when filed with the Commission, in all material
respects to the requirements of the Act and the Rules and Regulations or
the Exchange Act and the rules and regulations of the Commission
thereunder ("Exchange Act Rules and Regulations"), as the case may be, and
each document, if any, hereafter filed under the Exchange Act and deemed
to be incorporated by reference in the Prospectus in accordance with Item
12 of Form S-3 will conform when so filed with the requirements of the
Exchange Act and the Exchange Act Rules and Regulations.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, of the Company and its consolidated subsidiaries
considered as one enterprise, or in the earnings, business affairs or
business prospects of the Company and its consolidated subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (ii) there have been no material transactions entered
into by the Company or any of its consolidated subsidiaries other than
those in the ordinary course of business, and (iii) except for regular
quarterly dividends on the Common Stock and on outstanding series of the
Company's Serial Preferred Stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(e) The Company and each of its consolidated subsidiaries have been
duly incorporated and are existing corporations in good standing under the
laws of their respective jurisdictions of incorporation, with corporate
power and authority to own, lease and operate their respective properties
and conduct their respective businesses as described in the Prospectus;
and are duly qualified as foreign corporations to transact business and
are in good standing in each jurisdiction in which their respective
ownership or leasing of properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results
of operations of the Company and its consolidated subsidiaries.
(f) The authorized, issued and outstanding Common Stock of the
Company is as set forth in the Prospectus, except for subsequent
issuances, if any, pursuant to reservations or agreements referred to
therein; and the shares of issued and outstanding Common Stock set forth
therein have been duly and validly authorized and issued and are fully
paid and non-assessable.
(g) Neither the Company nor any of its consolidated subsidiaries is
in violation of its charter or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of them may
be bound; and the execution and delivery of this Agreement, and the
consummation of the transactions herein contemplated will not conflict
with or constitute a breach of, or default under, the Articles of
Incorporation or Code of Regulations of the Company or any material bond,
debenture, note or other evidence of indebtedness or any material
contract, indenture, mortgage, loan agreement, lease or other instrument
to which the Company or any of its consolidated subsidiaries is a party or
by which it or any of them may be bound, or any law, administrative
regulation or court decree.
(h) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened
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against or affecting the Company or any of its consolidated subsidiaries,
which is required to be disclosed in the Prospectus or which might result
in any material adverse change in the earnings, affairs, condition
(financial or otherwise), business or prospects of the Company and its
consolidated subsidiaries considered as one enterprise, or might
materially adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of transactions
contemplated by this Agreement; all pending legal or governmental
proceedings to which the Company or any consolidated subsidiary is a party
or of which any of their property is the subject which are not described
in the Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its consolidated
subsidiaries which would be required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which
have not been filed as exhibits to the Registration Statement.
(i) The Purchased Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Purchased Securities conform in all
material respects to the description thereof contained in the Prospectus.
(j) This Agreement has been duly authorized, executed and delivered
by the Company .
(k) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized and, when executed and delivered by the
Company, will constitute a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles, and the Indenture conforms in all
material respects to the description thereof contained in the Prospectus.
4. Purchase, Sale and Delivery of Purchased Securities. Purchased
Securities to be purchased by each Underwriter pursuant to the Terms Agreement
relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in such Terms Agreement, all
at the place, time and date specified in such Terms Agreement or at such other
place, time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Closing Date" for such
Purchased Securities. The Company shall make certificates for the Purchased
Securities available to the Underwriters for checking and packaging at least one
full business day prior to the Closing Date at the place specified in such Terms
Agreement.
If the Terms Agreement provides for sales of Purchased Securities pursuant
to Delayed Delivery Contracts, the Company authorizes the Underwriters to
solicit offers to purchase Purchased Securities from investors of the types set
forth in the Prospectus pursuant to Delayed Delivery Contracts substantially in
the form of Exhibit B attached hereto but with such changes therein as the
Company may approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, on the Closing Date, the Company will pay to the
Representatives, for the accounts of the Underwriters, the
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fee set forth in such Terms Agreement in respect of the principal amount of
Contract Purchased Securities. The Company will enter into a Delayed Delivery
Contract in all cases where a sale of Contract Purchased Securities arranged by
the Underwriters has been approved by the Company, but, except as the Company
may otherwise agree, such Delayed Delivery Contract must be for at least the
minimum amount of Contract Purchased Securities set forth in Schedule II to the
Terms Agreement, and the aggregate amount of Contract Purchased Securities may
not exceed the maximum amount set forth in such Schedule. The Company will
advise the Representatives no later than 10:00 A.M., New York City time, on the
second business day preceding the Closing Date (or at such later time as the
Representatives may otherwise agree) of the sales of Contract Purchased
Securities that have been so approved. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The amount of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Terms Agreement hereto shall be reduced by an amount which
bears the same proportion to the total amount of Contract Purchased Securities
as the amount of Purchased Securities set forth opposite the name of such
Underwriter bears to the total amount of Purchased Securities set forth in such
Schedule I, except to the extent that the Representatives determine that such
reduction shall be otherwise than in such proportion and so advise the Company;
provided, however, that the total amount of Purchased Securities to be purchased
by all Underwriters shall be the total amount of Purchased Securities less the
aggregate amount of Contract Purchased Securities.
It is understood that any Representative, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Purchased Securities to be
purchased by such Underwriter. Any such payment by such Representative shall not
relieve any such other Underwriter of any of its obligations hereunder.
5. Offering by Underwriters. After the execution of the Terms Agreement
relating to any Purchased Securities, the Underwriters propose to offer such
Purchased Securities for sale upon the terms and conditions set forth in the
Prospectus.
6. Covenants of the Company. In connection with each offering of
Purchased Securities, the Company covenants and agrees with each of the
Underwriters that:
(a) The Company will make no further amendment or any supplement to the
Registration Statement or Prospectus after the date of the Terms Agreement
relating to such Purchased Securities and prior to the Closing Date for
such Purchased Securities which shall be reasonably disapproved by the
Representatives for such Purchased Securities promptly after reasonable
notice; will advise the Representatives promptly of any such amendment or
supplement after such Closing Date and furnish the Representatives with
copies thereof; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Purchased Securities; will advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has become effective or
any supplement to the Prospectus or any amended Prospectus has been filed,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Prospectus or any supplement to
the Prospectus or any amended Prospectus and of the initiation of any
proceeding for any such purpose; and in the event of the issuance of any
stop order or of any order preventing or suspending the use of any such
Prospectus or any supplement to the Prospectus or amended Prospectus, will
use promptly its best efforts to obtain its withdrawal.
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(b) If at any time when a prospectus relating to such Purchased
Securities is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act or
the Trust Indenture Act, the Company promptly will (x) prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance,
or (y) prepare and file with the Commission documents deemed to be
incorporated by reference in the Prospectus as then amended or
supplemented which will correct such statement or omission or effect such
compliance.
(c) Not later than 90 days after the end of the 12-month period
beginning at the end of any fiscal quarter of the Company during which a
Closing Date occurs, the Company will make generally available to its
securityholders an earnings statement (which need not be audited) covering
such 12-month period which will satisfy the provisions of Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158).
(d) The Company will furnish to the Representatives on behalf of the
Underwriters copies of the Registration Statement, each related
Preliminary Prospectus (which, including documents incorporated by
reference therein, is hereinafter referred to as a "Preliminary
Prospectus"), the Prospectus and all amendments and supplements to such
documents, and all documents incorporated by reference in any of the
foregoing documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request. A copy of each
document prepared or filed by the Company on or prior to the date of the
Terms Agreement shall be furnished to the Representatives on behalf of the
Underwriters prior to their execution of the Terms Agreement; provided
that if such documents are not available, the Company shall furnish to
such Representatives the information included or to be included therein,
except that in such case the Company need not furnish such Representatives
with information to be included in the Prospectus Supplement as to the
terms of the Purchased Securities and their manner of distribution.
(e) The Company will cooperate with the Underwriters in qualifying such
Purchased Securities for offering and sale and in determining their
eligibility for investment under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in effect
so long as required for the distribution of such Purchased Securities;
provided, however, that the Company shall not be obligated to file any
general consent to service, or to qualify as a foreign corporation in any
state in which it is not now so qualified.
(f) During a period of five years from the date of the Terms Agreement
relating to such Purchased Securities, the Company will promptly furnish
to the Representatives and upon request, to each of the other
Underwriters, an annual report of the Company for each fiscal year and
current reports of the Company for each quarterly period, in each case in
the forms and at the times furnished to shareholders of the Company, and,
as soon as available, a copy of each report of the Company filed with the
Commission under the Exchange Act, and, during a period of three years
from the date of the Terms Agreement relating to such Purchased
Securities, the Company will furnish to the Representatives such other
information concerning the Company as the Representatives may reasonably
request.
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(g) The Company will use its best efforts to obtain the listing of the
Purchased Securities, subject to notice of issuance, on such national
securities exchanges, if any, as are indicated in the Terms Agreement
relating to such Purchased Securities, and the registration thereof under
the Exchange Act, in each case prior to the Closing Date for such
Purchased Securities.
(h) The Company will not, without the prior consent of the
Representatives, offer, sell, contract to sell or otherwise dispose of any
debt constituting a security (as defined in the Act) or the Company or any
warrants to purchase debt securities of the Company substantially similar
to the Purchased Securities (other than (i) the Purchased Securities and
(ii) commercial paper issued in the ordinary course of business) during
the period beginning from and including the date of execution of the Terms
Agreement with respect to the Purchased Securities and continuing to and
including the Closing Date.
7. Expenses. The Company agrees with you and each Underwriter of any
Purchased Securities that the Company will pay or cause to be paid the
following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any amendments and supplements thereto and
the mailing and delivery of copies thereof to the Underwriters and
dealers;
(ii) the cost of printing this Agreement, any agreement among
underwriters, any Terms Agreement, any Delayed Delivery Contract, any
Indenture, any Blue Sky and legal investment memoranda and any other
document in connection with the offering, purchase, sale and delivery of
the Securities;
(iii) all expenses in connection with the qualification of the
Securities for offering and sale as provided in Section 6(e) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with Blue Sky and
legal investment surveys;
(iv) any fees charged by securities rating services for rating the
Securities;
(v) the cost of preparing the Securities;
(vi) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in
connection with the Indentures and the Securities;
(vii) any filing fees payable to the National Association of
Securities Dealers Inc. with respect to the Securities;
(viii) out-of-pocket expenses incurred in distributing any
Preliminary Prospectuses to the Underwriters; and
(ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section 7.
It is understood, however, that, except as provided in this Section 7, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
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8. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters of any Purchased Securities to purchase and pay for such
Purchased Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein as of the Closing Date relating to
such Purchased Securities with the same force and effect as if made on such
date, to the accuracy of the statements of the Company officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) Prior to such Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
(b) The Representatives shall not have advised the Company or been
advised by the Company or the Commission that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact or omits to state a fact which the Representatives have
concluded is in either case material and in the case of an omission is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) The Representatives shall have received an opinion or opinions of
the General Counsel for the Company, dated such Closing Date, to the
effect set forth in Exhibit C hereto.
(d) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of
the Purchased Securities, the Registration Statement, the Prospectus and
such other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Representatives shall have received a certificate of either
the Chairman of the Board of Directors, the Vice Chairman, the President
or a Vice President of the Company, and of either the principal financial
or principal accounting officer of the Company, dated such Closing Date,
to the effect that the representations and warranties on the part of the
Company herein are true and correct as of such Closing Date with the same
force and effect as if made on that date, and that the Company has
performed all its obligations hereunder to be performed at or prior to
that date, and as to such other matters as the Representatives may
reasonably request.
(f) The Representatives shall have received letters from Ernst & Young
LLP dated the date of this Agreement and such Closing Date, addressed to
the Company and to the Underwriters, with conformed copies for each of the
Underwriters, to the effect set forth in Exhibit D hereto.
(g) The Company shall have furnished to the Representatives such
further information and documents as the Representatives shall have
reasonably requested.
(h) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, there
shall not have occurred (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 8 or (ii) any
change, or any development involving a prospective change, in or affecting
the business or properties of the Company and its subsidiaries, taken as a
whole, the effect of which, in any
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case referred to in clause (i) or (ii) above, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Purchased Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
(i) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, (i) no
downgrading shall have occurred in the rating accorded the Company's
unsecured debt securities or preferred stock by Standard & Poor's Ratings
Group or Moody's Investors Service, Inc. 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
unsecured debt securities or preferred stock.
(j) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, there
shall not have occurred any of the following: (A) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited or minimum prices
shall have been established on such Exchange; (B) a general moratorium on
commercial banking activities in New York declared by either Federal or
New York State authorities; or (C) any material outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets either inside or outside the United States is
such as to make it, in your reasonable judgment, impracticable to proceed
with the public offering or the delivery of the Purchased Securities on
the terms and in the manner contemplated by the Prospectus as amended or
supplemented.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
In the event that the purchase of such Purchased Securities does not occur
by reason of subsection (h) or (i) of this Section 8, the Company shall have no
liability to the Underwriters except for expenses to be paid or reimbursed as
set forth in Section 7 and its obligations under Section 9.
9. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
supplement or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any such amendment or supplement, or any related preliminary
prospectus supplement, in reliance upon and in conformity with written
information furnished to the Company by the Representatives, or by any
Underwriter through the Representatives, specifically for use in the preparation
thereof.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise,
<PAGE>
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any related preliminary prospectus supplement or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, or any related preliminary prospectus supplement in
reliance upon and in conformity with written information furnished to the
Company by the Representatives, or by such Underwriter through the
Representatives, specifically for use in the preparation thereof; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending against any such loss,
claim, damage, liability or action.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 9, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives, in the case of parties indemnified
pursuant to paragraph (a) above and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims,
<PAGE>
damages or liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is 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 in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, 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, 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 untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (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 account of the equitable considerations
referred to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the 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. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
10. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Purchased Securities which they may have agreed
to purchase under the Terms Agreement relating to such Purchased Securities and
the total amount of Purchased Securities under such Terms Agreement which such
defaulting Underwriter or Underwriters agreed to but failed to purchase does not
exceed 10% of the total amount of Purchased Securities to be purchased under
such Terms Agreement, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Purchased
Securities which such defaulting Underwriters agreed to but failed to purchase.
If any Underwriter or Underwriters so default and the total amount of Purchased
Securities under such Terms Agreement with respect to which such default or
defaults occur is more than 10% of the total amount of Purchased Securities to
be purchased under such Terms Agreement and arrangements satisfactory to the
Representatives and the Company for the purchase of such Purchased Securities by
<PAGE>
other persons are not made within thirty-six hours after such default, such
Terms Agreement may be terminated by the Representatives or by the Company
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be paid or reimbursed by the Company pursuant to
Section 7 and the respective obligations of the Company and the Underwriters
pursuant to Section 9. As used in this Agreement the term "Underwriter" includes
any person substituted for an Underwriter under this Section 10. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
11. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement or the Terms Agreement relating to the Purchased
Securities will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or the Company or any of its officers, directors or controlling
persons and will survive delivery of and payment for any Purchased Securities.
12. Notices. All communications hereunder will be in writing, and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives at the address or addresses set forth in the applicable
Terms Agreement, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Alco Standard Corporation, P.O. Box 834,
Valley Forge, Pennsylvania 19482. Attention: General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 9 will be mailed,
delivered or telegraphed and confirmed to such Underwriter at its address
furnished to the Company in writing for the purpose of communications
thereunder.
13. Successors. This Agreement and each Terms Agreement will inure to
the benefit of and be binding upon the Company, the Underwriters and their
respective successors and, to the extent provided in Section 9, the officers,
directors and controlling persons referred to in Section 9, and no other person
will have any right or obligation hereunder.
14. Representation of Underwriters. In all dealings with the Company
under this Agreement, the Representatives represent that they shall act on
behalf of each of the Underwriters and that any action under this Agreement
taken by the Representatives will be binding upon all the Underwriters.
15. Governing Law. This Agreement and each Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
16. Counterparts. This Agreement and each Terms Agreement may be
executed in counterparts, all of which, taken together, shall constitute a
single agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us six counterparts hereof.
Very truly yours,
ALCO STANDARD CORPORATION
By /s/ Karin M. Kinney
------------------------
Name: Karin M. Kinney
Title: Assistant Secretary
<PAGE>
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
ACTING SEVERALLY ON BEHALF OF THEMSELVES
AND THE SEVERAL UNDERWRITERS NAMED.
BY MORGAN STANLEY & CO. INCORPORATED
BY: /s/ JENNIFER A. HARRIS
-----------------------------------
NAME: JENNIFER A. HARRIS
TITLE: VICE PRESIDENT
<PAGE>
EXHIBIT A
FORM OF TERMS AGREEMENT
[Names of Representative(s)]
[As Representative(s) of
the several Underwriters,]
[Address of Representative(s)]
Dear Sirs:
Alco Standard Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
December 6, 1995 (the "Underwriting Agreement"), between the Company on one hand
and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers
Inc. and Prudential Securities Incorporated on the other hand, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Purchased Securities"). Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provision had been set forth in full herein, and each of
the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Terms Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Purchased Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Purchased Securities, if any, covered by Delayed Delivery Contracts.
<PAGE>
If the foregoing is in accordance with your understanding, kindly sign
and return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
ALCO STANDARD CORPORATION
By____________________________
Title:
Accepted as of the date hereof:
[Names of Representative(s)]
On behalf of each of the Underwriters
By_______________________________
Title:
A-2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount
of Purchased
Securities to
Underwriter be Purchased
----------- -------------
<S> <C>
[Name(s) of Representatives]............................... $
[Name(s) of other Underwriters]............................
-------------
Total................................................... $
=============
</TABLE>
A-3
<PAGE>
SCHEDULE II
Title of Purchased Securities:
Amount of Securities:
Price to Public:
Purchase Price by Underwriters:
Specified Funds for Payment of Purchase Price:
Indenture:
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Stock Exchange Listing:
Place for Checking and Packaging Purchased
Securities:
Closing Date and Time:
Closing Location:
Manner of Payment for Purchased Securities:
[Delayed Delivery Contracts:
Fee:
Minimum amount of each Contract:
Maximum amount of all Contracts:]
Address for Notices per Section 12:
Other Terms:
A-4
<PAGE>
EXHIBIT B
(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 , ./*/)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering.]
Alco Standard Corporation
c/o (Insert name(s) of Representative(s)
of the Underwriters]
Gentlemen:
The undersigned hereby agrees to purchase from Alco Standard Corporation
(the "Company"), and the Company agrees to sell to the undersigned, [if one
delayed closing, insert: as of the date hereof, for delivery on (the
"Delivery Date")]
$ principal amount of the Company's
(hereinafter called "Debt Securities"), offered by the Company's Prospectus
dated , and a Prospectus Supplement dated
relating thereto, receipt of copies of which is hereby acknowledged, at %
of the principal amount thereof plus accrued interest, 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, Debt Securities in the principal amounts
set forth below.
DELIVERY DATE PRINCIPAL AMOUNT
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Debt Securities which the undersigned has agreed to
purchase for delivery on-the-each Delivery Date shall be made to the Company or
its order by immediately available funds at the office of at
.m., New York Time, on-the-such-Delivery Date upon delivery to the
undersigned of the Debt Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive 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-the-such-Delivery Date.
_________________
* Insert date which is second full business day prior to Closing Date under
Term Agreement
B-1
<PAGE>
It is expressly agreed that the purchase hereunder of Debt 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,
Debt Securities on-the-each-Delivery Date shall be subject only to the
conditions that (1) the purchase of Debt Securities shall not-at-the-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 Under writers the total principal amount of the Debt Securities less the
principal amount thereof covered by this and other similar Contracts./*/ The
undersigned represents that its investment in such Debt Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
Promptly after completion of the sale of Debt Securities 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.
This Contract may be executed by either of the parties hereto in any
number of counterparts each of which shall be deemed to be an original, but all
such counterparts shall constitute one and the same instrument.
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.
Very truly yours,
________________________________________
(Name of Purchaser)
By______________________________________
________________________________________
(Title of Signatory)
________________________________________
______________________________
/*/ Modify appropriately if the Underwriters may be obligated to take less than
all of the Purchased Securities under the Terms Agreement.
B-2
<PAGE>
________________________________________
(Address of Purchaser)
Alco Standard Corporation
Accepted as of the above date
By________________________________
Title:
B-3
<PAGE>
EXHIBIT C
OPINION OF GENERAL COUNSEL
(i) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Ohio, with corporate power and
authority to own its properties and conduct its business as it is now being
conducted except where the failure to have such power or authority would not
individually or in the aggregate have a material adverse effect on the financial
condition or operations of the Company and its subsidiaries, taken as a whole;
(ii) Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, and are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that such counsel believes
that both of you and such counsel are justified in relying upon such opinions
and certificates);
(iii) The Company has an authorized capital stock as set forth in the
Prospectus; and all of the issued shares of capital stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Purchased Securities have been duly and validly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture and will be
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Purchased Securities
conform in all material respects to the description thereof contained in the
Prospectus;
(iv) This Agreement has been duly authorized, executed and delivered by
the Company;
(v) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture conforms
in all material respects to the description thereof contained in the Prospectus;
(vi) To the best of such counsel's knowledge after reasonable
investigation there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, individually or in
the aggregate, are likely to have a material adverse effect on the consolidated
financial condition or operations of the Company and its subsidiaries, taken as
a whole; and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(vii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Purchased
Securities and the Indenture will not conflict with or result in a breach or
violation of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company or any
C-1
<PAGE>
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject (except for such conflicts, breaches,
violations and defaults that would not have a material adverse effect on the
financial condition or operations of the Company and its subsidiaries, taken as
a whole, and that would not affect the validity of the Purchased Securities),
nor will such action result in any violation of the provisions of the Articles
of Incorporation or Code of Regulations of the Company as in effect at the date
hereof or any existing statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties (except for such
violations of such statutes, orders, rules or regulations that would not have a
material adverse effect on the financial condition or operations of the Company
and its subsidiaries, taken as a whole, and that would not affect the validity
of the Purchased Securities);
(viii) To the best of such counsel's knowledge after reasonable
investigation, no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the performance by the Company of its obligations under this
Agreement, the Purchased Securities and the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with the offer
and sale of the Purchased Securities;
(ix) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when such documents became effective or were so filed, as the case
may be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules and other financial
data therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the rules and
regulations thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto made
by the Company prior to the date hereof (other than the financial statements and
related schedules and other financial data therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the date hereof (other than the financial statements and related
schedules therein and other financial data therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading or that, as
of the date hereof, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules and other
financial data therein, as
C-2
<PAGE>
to which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
the statements in the Prospectus or any further amendment or supplement thereto
made by the Company prior to the date hereof with respect to statutes,
administrative orders and regulations and legal and governmental proceedings
fairly and accurately present in all material respects the information required
to be set forth therein and to the best of such counsel's knowledge there are no
statutes, administrative orders or regulations required to be described in the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the date hereof which are not described as required; and such counsel
does not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or any further amendment or supplement thereto
made by the Company prior to the date hereof or required to be described in the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to the date hereof which are not filed or
incorporated by reference or described as required.
C-3
<PAGE>
EXHIBIT D
Pursuant to Section 8(f) of the Underwriting Agreement, Ernst & Young LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and schedules audited by
them and included in the Prospectus as amended or supplemented or the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus as amended or
supplemented agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
in the Prospectus as amended or supplemented, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus as amended or supplemented do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(B) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus as amended or supplemented) or any increase in
the consolidated long-term debt of the Company and its subsidiaries; in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus as amended or
supplemented, except in each case for changes, increases or decreases
which the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter; and
(C) for the period from the date of the latest financial statements
included in the Prospectus as amended or supplemented to the date of the
latest consolidated financial statements prepared by the Company there
were any decreases in consolidated revenues, income from continuing
operations, net income, earnings per share from continuing operations, or
any increases in other items specified by the Representatives, in each
case as compared with the
D-1
<PAGE>
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for decreases or increases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the audit referred to in their report(s) included in the
Prospectus as amended or supplemented and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (iii) and
(iv) above, they have carried out certain specified procedures, not constituting
an audit in accordance with generally accepted accounting standards, with
respect to certain amounts, percentages, and financial information specified by
the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus as amended or
supplemented, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them to be
in agreement.
D-2
<PAGE>
EXHIBIT 1.1
TERMS AGREEMENT
December 6, 1995
Morgan Stanley & Co. Incorporated,
Goldman, Sachs & Co.,
Lehman Brothers Inc.,
Prudential Securities Incorporated,
c/o Morgan Stanley & Co. Incorporated,
1585 Broadway,
New York, New York 10036.
Dear Sirs:
Alco Standard Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
December 6, 1995 (the "Underwriting Agreement"), between the Company on one hand
and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Lehman Brothers
Inc. and Prudential Securities Incorporated, as the several Underwriters, on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Purchased Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provision had been
set forth in full herein, and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Purchased Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Purchased Securities, if any, covered by Delayed Delivery Contracts.
<PAGE>
If the foregoing is in accordance with your understanding, kindly sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
ALCO STANDARD CORPORATION
By /s/ Kathleen M. Burns
--------------------------
Name: Kathleen M. Burns
Title: Vice President and Treasurer
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Lehman Brothers Inc.
Prudential Securities Incorporated
By Morgan Stanley & Co. Incorporated
By /s/ Jennifer A. Harris
----------------------------
Name: Jennifer A. Harris
Title: Vice President
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount
of Purchased
Securities to
Underwriter be Purchased
----------- -------------
<S> <C>
Morgan Stanley & Co. Incorporated................................ $ 75,000,000
Goldman, Sachs & Co.............................................. 75,000,000
Lehman Brothers Inc.............................................. 75,000,000
Prudential Securities Incorporated............................... 75,000,000
------------
Total............................................................ $300,000,000
============
</TABLE>
<PAGE>
SCHEDULE II
Title of Purchased Securities: 6.75% Bonds Due December 1, 2025
Amount of Securities: $300,000,000
Price to Public: $ 295,440,000 (98.480%)
Purchase Price by Underwriters: $ 292,815,000 (97.605%)
Specified Funds for Payment of Purchase Price: Same Day Funds
Indenture: Dated as of December 11, 1995, between Alco Standard Corporation
and First Fidelity Bank, National Association
Maturity: December 1, 2025
Interest Rate: 6.75%
Interest Payment Dates: June 1 and December 1, beginning June 1, 1996
Regular Record Dates: May 15 and November 15, beginning May 15, 1996
Redemption Provisions: Bonds will be redeemable as a whole or in part, at
the option of the Company at any time, at a
redemption price equal to the greater of (i) 100% of
their principal amount or (ii) the sum of the present
values of the remaining scheduled payments of
principal and interest thereon discounted to maturity
on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury
Yield (as defined in the Prospectus) plus 15 basis
points, plus in each case accrued interest to the
date of redemption.
Sinking Fund Provisions: None
Stock Exchange Listing: None
Place for Checking and Delivery of the Purchased Securities will be made
Packaging Purchased through the book-entry facilities of The Depository
Securities: Trust Company
Closing Date and Time: December 11, 1995, 9:00 a.m., New York time
Closing Location: Sullivan & Cromwell, 125 Broad Street, New York, New
York 10004
Manner of Payment for
Purchased Securities: Wire transfer
<PAGE>
Address for Notices
per Section 12: Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Registration Department
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: Registration Department
Prudential Securities Incorporated
One New York Plaza
18th Floor
New York, New York 10292
Attention: Charles F. Preusse
Other Terms: None
<PAGE>
EXHIBIT 4
=====================================================================
ALCO STANDARD CORPORATION
TO
FIRST FIDELITY BANK, National Association
Trustee
_________
Indenture
Dated as of December 11, 1995
_________
Debt Securities
=====================================================================
<PAGE>
.....................................
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ---------------- ---------
<S> <C>
(S) 310(a)(1) ....................................... 609
(a)(2) ....................................... 609
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(b) ....................................... 608
610
(S) 311(a) ....................................... 613
(b) ....................................... 613
(S) 312(a) ....................................... 701
702(a)
(b) ....................................... 702(b)
(c) ....................................... 702(c)
(S) 313(a) ....................................... 703(a)
(a)(4) ....................................... 101
1004
(b) ....................................... 703(a)
(c) ....................................... 703(a)
(d) ....................................... 703(b)
(S) 314(a) ....................................... 704
(b) ....................................... Not Applicable
(c)(1) ....................................... 102
(c)(2) ....................................... 102
(c)(3) ....................................... Not Applicable
(d) ....................................... Not Applicable
(e) ....................................... 102
(S) 315(a) ....................................... 601
(b) ....................................... 602
(c) ....................................... 601
(d) ....................................... 601
(e) ....................................... 514
(S) 316(a) ....................................... 101
(a)(1)(A) ....................................... 502
512
(a)(1)(B) ....................................... 513
(a)(2) ....................................... Not Applicable
(b) ....................................... 508
(c) ....................................... 104(c)
</TABLE>
<PAGE>
<TABLE>
Trust Indenture Indenture
Act Section Section
- ---------------- ---------
<S> <C>
(S) 317(a)(1) ....................................... 503
(a)(2) ....................................... 504
(b) ....................................... 1003
(S) 318(a) ....................................... 107
</TABLE>
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Parties.................................................... 1
Recitals of the Company.................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions................................ 1
Act........................................ 2
Affiliate.................................. 2
Attributable Debt.......................... 2
Authenticating Agent....................... 2
Board of Directors......................... 2
Board Resolution........................... 2
Business Day............................... 2
Commission................................. 3
Company.................................... 3
Company Request or Company Order........... 3
Consolidated Net Assets.................... 3
Corporate Trust Office..................... 3
corporation................................ 3
Defaulted Interest......................... 3
Depositary................................. 3
Event of Default........................... 3
Exchange Act............................... 4
Expiration Date............................ 4
Global Security............................ 4
Holder..................................... 4
Indenture.................................. 4
interest................................... 4
Interest Payment Date...................... 4
Investment Company Act..................... 4
Maturity................................... 4
Notice of Default.......................... 4
Officers' Certificate...................... 5
Opinion of Counsel......................... 5
Original Issue Discount Security........... 5
Outstanding................................ 5
Paying Agent............................... 6
Person..................................... 6
Place of Payment........................... 6
Predecessor Security....................... 6
Principal Property......................... 7
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Redemption Date............................ 7
Redemption Price........................... 7
Regular Record Date........................ 7
Responsible Officer........................ 7
Restricted Subsidiary...................... 7
Securities................................. 7
Securities Act............................. 7
Security Register.......................... 7
Special Record Date........................ 7
Stated Maturity............................ 8
Subsidiary................................. 8
Trustee.................................... 8
Trust Indenture Act........................ 8
U.S. Government Obligations................ 8
Vice President............................. 8
Section 102. Compliance Certificates and
Opinions................................... 8
Section 103. Form of Documents Delivered to
Trustee.................................... 9
Section 104. Acts of Holders; Record Dates................ 10
Section 105. Notices, Etc. to Trustee and
Company.................................... 13
Section 106. Notice to Holders; Waiver.................... 13
Section 107. Conflict with Trust Indenture
Act........................................ 14
Section 108. Effect of Headings and Table
of Contents................................ 14
Section 109. Successors and Assigns....................... 14
Section 110. Separability Clause.......................... 14
Section 111. Benefits of Indenture........................ 14
Section 112. Governing Law................................ 14
Section 113. Legal Holidays............................... 15
</TABLE>
-ii-
<PAGE>
<TABLE>
Page
<S> <C> <C>
ARTICLE TWO
Security Forms
Section 201. Forms Generally.............................. 15
Section 202. Form of Face of Security..................... 16
Section 203. Form of Reverse of Security.................. 18
SECTION 204. Form of Legend for Global
Securities................................. 23
Section 205. Form of Trustee's Certificate
of Authentication......................... 23
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in
Series..................................... 23
Section 302. Denominations................................ 27
Section 303. Execution, Authentication,
Delivery and Dating........................ 27
Section 304. Temporary Securities......................... 29
Section 305. Registration, Registration of
Transfer and Exchange...................... 30
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities.......................... 32
Section 307. Payment of Interest; Interest
Rights Preserved........................... 33
Section 308. Persons Deemed Owners........................ 34
Section 309. Cancellation................................. 35
Section 310. Computation of Interest...................... 35
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.................................. 35
Section 402. Application of Trust Money................... 37
ARTICLE FIVE
Remedies
Section 501. Events of Default............................ 37
Section 502. Acceleration of Maturity;
Rescission and Annulment................... 39
Section 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee.................................... 41
Section 504. Trustee May File Proofs of
Claim...................................... 42
Section 505. Trustee May Enforce Claims
Without Possession of
Securities................................. 43
Section 506. Application of Money
Collected.................................. 43
Section 507. Limitation on Suits.......................... 43
Section 508. Unconditional Right of Holders
to Receive Principal,
Premium and Interest....................... 44
Section 509. Restoration of Rights and
Remedies................................... 45
Section 510. Rights and Remedies
Cumulative................................. 45
Section 511. Delay or Omission Not Waiver................. 45
Section 512. Control by Holders........................... 45
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 513. Waiver of Past Defaults...................... 46
Section 514. Undertaking for Costs........................ 46
Section 515. Waiver of Stay or Extension
Laws....................................... 47
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.......... 47
Section 602. Notice of Defaults........................... 47
Section 603. Certain Rights of Trustee.................... 48
Section 604. Not Responsible for Recitals
or Issuance of Securities..................
Section 605. May Hold Securities.......................... 49
Section 606. Money Held in Trust.......................... 49
Section 607. Compensation and
Reimbursement.............................. 50
Section 608. Disqualification; Conflicting
Interests.................................. 50
Section 609. Corporate Trustee Required;
Eligibility................................ 51
Section 610. Resignation and Removal, Appointment of
Successor.................................. 51
Section 611. Acceptance of Appointment by
Successor.................................. 53
Section 612. Merger, Conversion, Consolidation or
Succession to Business..................... 54
Section 613. Preferential Collection of Claims Against
Company.................................... 55
Section 614. Appointment of Authenticating Agent.......... 55
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of
Holders.................................... 57
Section 702. Preservation of Information;
Communications to Holders.................. 58
Section 703. Reports by Trustee........................... 58
Section 704. Reports by Company........................... 58
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms...................... 59
Section 802. Successor Corporation Substituted............ 60
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures
Without Consent of Holders................. 60
Section 902. Supplemental Indentures with
Consent of Holders......................... 62
Section 903. Execution of Supplemental
Indentures................................. 63
Section 904. Effect of Supplemental
Indentures................................. 63
Section 905. Conformity with Trust
Indenture Act.............................. 64
Section 906. Reference in Securities to Supplemental
Indentures................................. 64
</TABLE>
-vi-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium
and Interest............................... 64
Section 1002. Maintenance of Office or
Agency..................................... 64
Section 1003. Money for Securities to Be
Held in Trust.............................. 65
Section 1004. Corporate Existence.......................... 66
Section 1005. Maintenance of Properties.................... 67
Section 1006. Limitation on Liens.......................... 67
Section 1007. Limitation on Sale and Lease-
Back....................................... 71
Section 1008. Exemption from Limitations on
Liens and Sale and Lease-
Back....................................... 72
Section 1009. Statement by Officers as to
Default.................................... 72
Section 1010. Waiver of Certain Covenants.................. 73
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article..................... 73
Section 1102. Election to Redeem; Notice to
Trustee.................................... 73
Section 1103. Selection by Trustee of
Securities to Be Redeemed.................. 74
Section 1104. Notice of Redemption......................... 74
Section 1105. Deposit of Redemption Price.................. 75
</TABLE>
-vii-
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 1106. Securities Payable on
Redemption Date............................ 76
Section 1107. Securities Redeemed in Part.................. 76
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article..................... 76
Section 1202. Satisfaction of Sinking Fund
Payments with Securities................... 77
Section 1203. Redemption of Securities for
Sinking Fund............................... 77
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance... 78
Section 1302. Defeasance and Discharge..................... 78
Section 1303. Covenant Defeasance.......................... 79
Section 1304. Conditions to Defeasance or Covenant
Defeasance................................. 79
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions................... 82
Section 1306. Reinstatement................................ 82
Testimonium................................................... 83
Signatures and Seals.......................................... 83
Acknowledgements.............................................. 84
</TABLE>
-viii-
<PAGE>
INDENTURE, dated as of December __, 1995, between Alco Standard
Corporation, a corporation duly organized and existing under the laws of the
State of Ohio (herein called the "Company"), having its principal office at P.O.
Box 834, Valley Forge, Pennsylvania 19482, and First Fidelity Bank, National
Association, a national banking association duly organized and existing under
the laws of the United States, as Trustee (herein called the "Trustee").
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 unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" has the meaning specified in Section 1006.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday,
-2-
<PAGE>
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution 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 corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to a
Responsible Officer of the Trustee.
"Consolidated Net Assets" has the meaning specified in Section 1006.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the original execution of this Indenture is located
at 765 Broad Street, 5th Floor, Newark, New Jersey 07102.
"corporation" includes corporations, associations, companies, joint-
stock companies or business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
-3-
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration or acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
-4-
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice Presi dent, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1009 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(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; provided 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 306 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 the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
-5-
<PAGE>
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of Security described in Clause (A) or (B) above,
of the amount determined as provided in such Clause), and (D) 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 request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee actually
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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
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<PAGE>
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" has the meaning specified in Section 1006.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer within the Trustee's Corporate Trust Office (or any successor
group), including without limitation any vice president, any assistant vice
president, any assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above-
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" has the meaning specified in Section 1006.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
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<PAGE>
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"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 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 that 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 such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, to be given by an officer of the Company, or an
Opinion of Counsel, if
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<PAGE>
to be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the 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
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<PAGE>
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted 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 agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the 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. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
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<PAGE>
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or
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<PAGE>
(iv) any direction referred to in Section 512, in each case with respect to
Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which set such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to
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<PAGE>
such appointment with regard to all or any part of such principal amount.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notifi cation as shall be made with the approval of the Trustee
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<PAGE>
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which 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 which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Security Registrar, any Paying Agent and any other agent of the
Company appointed hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
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<PAGE>
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwith standing any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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<PAGE>
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
No. ......... $......
........................, a corporation duly organized and existing under the
laws of ...........(herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .................., or registered assigns,
the principal sum of .......................... Dollars
on................................... [if the Security is to bear interest prior
to Maturity, insert -, and to pay interest thereon from .............. or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on.......... and.......... in each year, commencing
..................., at the rate of ....% per annum, until the principal hereof
is paid or made available for payment [if applicable, insert - , provided that
any principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ... % per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ...... or......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security
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<PAGE>
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ...% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ........, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert - ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
..............................
By............................
Attest:
...................
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ........... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ...................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee[, the holders of Senior Debt] and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert - . limited in aggregate principal amount
to $.......].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ........ in any year commencing with the year ..... and ending with the
year ..... through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [If
applicable, insert - on or after ......., 19..], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert - on or
before .....................%, and if redeemed] during the 12-month period
beginning......... of the years indicated,
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<PAGE>
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year
- ---- ---------- ------
Price
- -------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ......... in any
year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after.........], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning.........of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to
-19-
<PAGE>
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company
may not, prior to redeeming any Securities of this series as contemplated by [if
applicable, insert - Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than....% per annum.]
[If applicable, insert - The sinking fund for this series provides for
the redemption on..........in each year beginning with the year......and ending
with the year.... of [If applicable, insert - not less than $.......("mandatory
sinking fund") and not more than] $....... aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through [if applicable, insert - mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert - mandatory]
sinking fund payments otherwise required to be made [if applicable, insert - ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder, upon the cancellation hereof.]
[If applicable, insert paragraph regarding subordination of the
Security.]
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
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due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable
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indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $...... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof
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for all purposes, whether or not this Security be overdue, ad neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Fidelity Bank,
National Association
as Trustee
By
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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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 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit 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 registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
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(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
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the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303)
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<PAGE>
set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the Securi
ties of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Vice Chairman, or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwith standing that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
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<PAGE>
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel (pursuant to
Section 102) stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, 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 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that 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 upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
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Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the 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 Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or
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other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of that series (or that series
and tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
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registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
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lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of 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.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than
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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 given to each Holder of
Securities of such series in the manner provided by Section 106, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such 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.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered in the Security Register as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatso-
ever, 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 sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
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repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount 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;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities 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 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, mens 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 of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that 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 has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that 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
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Company and the Trustee by the Holders of at least 10% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Company (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay any portion of the principal of such indebtedness in an
aggregate amount of $10,000,000 or more when due and payable after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such indebtedness in an aggregate amount of $10,000,000 or
more becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled, within a period of 10 days after there shall have 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 10% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default and requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; provided,
--------
however, that, subject to the provisions of Sections 601 and 602, the
-------
Trustee shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee shall have actual knowledge of
such default or (B) the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of any such indebtedness
or from the trustee under any such mortgage, indenture or other instrument;
or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a
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petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or 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 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
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. 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 that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if
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given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
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 that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that 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 interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If 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 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.
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Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized;
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding provided, however,
that the Trustee may, on
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behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. 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 (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder,
(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 that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
----------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the 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 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
------------------
The Holders of 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
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. 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 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 of any sinking
fund payment, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for
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the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
Section 515. 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.
ARTICLE SIX
The Trustee
Section 601. 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 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, 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 501(4) with respect to Securities of
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such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(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;
(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 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;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
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 604. 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 neither the Trustee nor the Authenticating Agent assumes any
responsibility for their correctness. Neither the Trustee nor the
Authenticating Agent makes any representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability
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for interest on any money received by it hereunder except as otherwise agreed
with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts 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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Sections 501(6) or 501(7), the expenses (including
the reasonable charges and expenses of its agents and counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being
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a trustee under this Indenture with respect to Securities of more than one
series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such has a combined
capital and surplus of at least $50,000,000. If any 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
and to the extent permitted by the Trust Indenture Act, 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 with respect to the Securities of any series 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 610. Resignation and Removal, Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition 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 by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the 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 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the 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 shares 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 611. 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 shares 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 in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor
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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 and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to 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
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every 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 the 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
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
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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 such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the 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 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the
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successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. 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), 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 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by a Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent
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report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of a Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as a Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent 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 607.
If a 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:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Fidelity Bank, National Association,
As Trustee
By_______________________,
As Authenticating Agent
By__________________
Authorized Officer
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders as of such Regular Record Date (or on a date to be determined
pursuant to Section 301 for any series of Original Issue Discount
Securities), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust indenture Act.
(c) Every Holder of Securities, 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 any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
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 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
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Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. 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, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the person formed by such consolidation or
into which the 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 shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia 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 and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become
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subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such
successor corporation or Person, as the case may be, shall take such steps
as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entity to any Person, 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 indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Section 802. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by 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
801, 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, except in the case of a
lease, the predecessor person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. 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:
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(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 if such covenants are to be
for the benefit of less than all series of Securities, 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 for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities pursuant to the requirements of Section
1006 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) 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, provided such action pursuant to
--------
this Clause (9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, 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 of Securities of such series under this Indenture; provided, however,
-------- -------
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions
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of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, 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 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 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
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Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities 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 of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served, which office or agency shall initially be the office of the
Trustee located at 123 South Broad Street, Corporate Trust Operations, Level B-
1, Philadelphia, Pennsylvania 19109. The Company will give prompt written
notice to the Trustee of any change in the location of such office or
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agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities to Be Held in Trust.
----------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and 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 for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
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, in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless 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 for 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 the provisions of
the Trust Indenture Act
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applicable to it as a 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, 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 three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in each Place of Payment, or mailed to such Holder, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, as the case may be, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, 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
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right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 1005. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1006. Limitation on Liens.
-------------------
(a) Except to the extent provided in Section 1008, the Company will
not create or assume, and will not permit any Restricted Subsidiary to create or
assume, any mortgage, security interest, pledge or lien (collectively in this
Article Ten referred to as a "lien") of or upon any Principal Property or shares
of capital stock or indebtedness of any Restricted Subsidiary, whether owned at
the date of this Indenture or thereafter acquired, without making effective
provision, and the Company in such case will make or cause to be made effective
provision whereby the Outstanding Securities shall be secured by such lien
equally and ratably with any and all other indebtedness or obligations thereby
secured so long as such other indebtedness or obligations shall be secured;
provided that the foregoing shall not apply to any of the following:
(i) liens on any Principal Property existing at the time that it is
acquired by the Company or any Restricted Subsidiary; or liens on any
Principal Property acquired, constructed or improved by the Company or any
Restricted Subsidiary after the date of this Indenture which are Created or
assumed contemporaneously with, or within 180 days after (or, in the case
of any such Principal Property which is
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being financed on the basis of long-term contracts or similar financing
arrangements for which a firm commitment is made by one or more banks,
insurance companies or other lenders or investors (not including the
Company or any Restricted Subsidiary), within 360 days after) the
completion of such acquisition construction or improvement to secure or
provide for the payment of any part of the purchase price of such property
or the cost of such construction or improvement;
(ii) liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at the time of
a sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary;
(iii) liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(iv) liens to secure indebtedness of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary, but only so long as such
indebtedness is held by the Company or a Restricted Subsidiary;
(v) liens in favor of the United States of America or any state
thereof, or any department, agency or political subdivision of the United
States of America or any state thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute, including
without limitation, liens to secure indebtedness represented by pollution
control or industrial revenue bonds, or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or the
cost of constructing or improving the property subject to such liens;
(vi) liens in favor of any customer arising in respect of partial,
progress, advance or other payments made by or on behalf of such customer
for goods produced for or services rendered to such customer in the
ordinary course of business not exceeding the amount of such payments;
(vii) liens existing at the date of this Indenture;
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(viii) mechanics', workers', repairmen's, materialmen's, warehousemen's
carriers' or other similar liens arising in the ordinary course of
business;
(ix) pledges or deposits under the workers' compensation laws or
similar legislation and liens of judgments thereunder which are not
currently dischargeable, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of money) or leases to which
the Company or any Restricted Subsidiary is a party, or deposits in
connection with obtaining or maintaining self-insurance or to obtain the
benefits of any law, regulation or arrangement pertaining to unemployment
insurance, old age pensions, social security or similar matters, or
deposits of cash or obligations of the United States of America to secure
surety, appeal or customs bonds to which the Company or any Restricted
Subsidiary is a party, or deposits in litigation or other proceedings such
as, but not limited to, interpleader proceedings;
(x) liens created by or resulting from any litigation or proceedings
which are being contested in good faith; liens arising out of judgments or
awards against the Company or any Restricted Subsidiary with respect to
which the Company or such Restricted Subsidiary is in good faith
prosecuting an appeal or proceedings for review; or liens incurred by the
Company or any Restricted Subsidiary for the purpose of obtaining a stay or
discharge in the course of any legal proceeding to which the Company or
such Restricted Subsidiary is a party;
(xi) liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings;
landlord's liens on property held under lease, and tenants' rights under
leases; and easements;
(xii) other liens incidental to the conduct of the business or the
ownership of the property and assets of the Company or a Restricted
Subsidiary which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit, and which do not, in the
opinion of the Company, materially detract from the value of the property
or assets or materially impair the use thereof in the operation of the
business
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of the Company and its Restricted Subsidiaries taken as a whole;
(xiii) liens for the sole purpose of extending, renewing or replacing in
whole or in part any lien referred to in the foregoing clauses (i) to
(xii), inclusive, or in this clause (xiii), provided that the principal
amount of indebtedness secured thereby shall not exceed the principal
amount of any indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or replacement
shall be limited to all or a part of the property subject to the lien so
extended, renewed or replaced (plus improvements on such property).
(b) For the purposes of Sections 1006, 1007 and 1008:
(i) "Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be
paid by such Person under such lease during the remaining term thereof,
excluding renewals at the option of lessee, discounted at a rate per annum
equal to the prevailing market interest rate, at the time such lease was
entered into, on United States Treasury obligations having a maturity
substantially the same as the average term of such lease, plus 3%. The net
amount of rent required to be paid under any such lease for any such period
shall be the amount of the rent payable by the lessee with respect to such
period, after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges and contingent rents such as those based on sales. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but
no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
(ii) "Consolidated Net Assets" means the total of all assets after
deducting all current liabilities appearing on a consolidated balance sheet
of the Company and its consolidated Subsidiaries, prepared in accordance
with generally accepted accounting principles, the assets to be determined
at their net book values (after deducting related depreciation, depletion,
amortization and all other valuation
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reserves which, in accordance with such principles, should be set aside in
connection with the business conducted).
(iii) "Principal Property" means any manufacturing plant, research
facility or warehouse owned or leased by the Company or any Restricted
Subsidiary which is located within the United States of America and has a
net book value exceeding 2 1/2% of Consolidated Net Assets, but not
including (1) any property which in the opinion of the Board of Directors
of the Company is not of material importance to the total business
conducted by the Company as an entirety or (2) any portion of a particular
property which is similarly found not to be of material importance to the
use or operation of such property.
(iv) "Restricted Subsidiary" means a Subsidiary of the Company which
owns a Principal Property.
Section 1007. Limitation on Sale and Lease-Back.
---------------------------------
Except to the extent provided in Section 1008, the Company will not,
nor will it permit any Restricted Subsidiary to, enter into any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property (except for leases of not more than three years and
except for leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), which property has been owned and operated by the
Company or any Restricted Subsidiary for more than 180 days and has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person (in Section 1007 and in Section 1008 referred to as a "Sale and Lease-
Back Transaction") unless either (i) the Company or such Restricted Subsidiary
would be entitled to incur indebtedness secured by a lien on such property
without equally and ratably securing the Securities pursuant to the provisions
of Section 1006 or (ii) the Company shall apply an amount equal to the
Attributable Debt in respect of such Sale and Lease-Back Transaction to (1) the
acquisition of one or more Principal Properties of equal or greater aggregate
fair market value, (2) the retirement of indebtedness for borrowed money,
including the Securities, incurred or assumed by the Company or any Restricted
Subsidiary (other than indebtedness for borrowed money owed to the Company or
any Restricted Subsidiary) or (3) any combination of the foregoing; provided
--------
that the amount to be applied to the retirement of such indebtedness of the
- ----
Company or any Restricted Subsidiary shall be reduced by (i) the principal
amount of any Securities delivered within 180
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days after such sale to the Trustee for retirement and cancellation, and (ii)
the principal amount of such indebtedness, other than Securities, voluntarily
retired by the Company within 180 days after such sale. Notwithstanding the
foregoing, no retirement referred to in clause (2) of the preceding sentence may
be effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
Section 1008. Exemption from Limitations on Liens and Sale and Lease-Back.
-----------------------------------------------------------
Notwithstanding the provisions of Section 1006 and Section 1007, the
Company and its Restricted Subsidiaries may create or assume liens and enter
into Sale and Lease-Back Transactions which would otherwise require the securing
of the Securities, the acquisition of one or more Principal Properties or the
retirement of indebtedness for borrowed money under said provisions, provided
--------
that the aggregate amount of all such liens and Sale and Lease-Back Transactions
- ----
permitted by Section 1008 outstanding at the time such lien is assumed or
created or such Sale and Lease-Back Transaction is entered into (as measured by
(i) all indebtedness secured by all such liens then outstanding or to be so
created or assumed (and after giving effect to the retirement of any
indebtedness or obligations which are concurrently being retired) and (ii) the
Attributable Debt in respect of all such Sale and Lease-Back Transactions then
outstanding or to be so entered into) shall not exceed 10% of Consolidated Net
Assets, as determined in accordance with the most recent published consolidated
balance sheet of the Company and after giving effect to the receipt and
application of any proceeds of all indebtedness secured by all such liens so to
be created or assumed and of any Sale and Lease-Back Transactions so to be
entered into.
Section 1009. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1001 to 1008, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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Section 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% 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 so expressly 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.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election
of the Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities 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 restriction.
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Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), 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, if the Securities are listed
on a national securities exchange, in accordance with the rules of such
exchange, or, if the securities are not so listed, on either a pro rata basis or
by lot, or by such other method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of a portion (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of any Security of such
series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption as aforesaid and,
in case of any Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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 Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of
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Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company 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.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
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Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) 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, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
-------- -------
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any 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.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder 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 and of like tenor, 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.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a
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series except as otherwise specified as contemplated by Section 301 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 cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities to be so credited have not been previously
--------
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, 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 and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver the Trustee any Securities to be
so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment
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date in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
---------------------------------------------------------------
or Covenant Defeasance.
----------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at any time elect (such election to be
evidenced by a Board Resolution), with respect to the Securities of such series,
either to effect such a defeasance pursuant to Section 1302 (if applicable) or
to effect such a covenant defeasance pursuant to Section 1303 (if applicable) in
respect of the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's election to effect a defeasance with respect to the
Securities of a series pursuant to this Section, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series on the date the conditions set forth in Section 1304
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities 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 Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1304 and
as more
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fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties, and immunities
of the Trustee hereunder and (D) this Article Thirteen. Subject to compliance
with this Article Thirteen, the Company may exercise its option under this
Section 1302 notwithstanding the prior exercise of its option under Section 1303
with respect to the Securities of such series.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's election to effect a covenant defeasance with
respect to the Securities of a series pursuant to this Section, the Company
shall be released from its obligations under Sections 1006, 1007 and 1008, and
Section 501(4) (with respect to Sections 1006, 1007 and 1008) and Section 501(5)
shall be deemed not to be an Event of Default, with respect to the Outstanding
Securities of such series on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, 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, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to effecting a defeasance with
respect to the Securities of a series pursuant to Section 1302 or effecting a
covenant defeasance with respect to the Securities of a series pursuant to
Section 1303:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
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Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any, on) and each instalment of
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Stated Maturity of such principal or
instalment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities. 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 callable or redeemable at the
option of the issuer thereof.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 123rd day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest as defined
in Section 608 and for purposes of the Trust Indenture Act with respect to
any securities of the Company.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or
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instrument to which the Company is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
delisted.
(6) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an opinion of nationally recognized tax
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 income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(7) In the case of an election under Section 1303, 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
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(9) 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 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
-81-
<PAGE>
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1305 and Section 1306, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of a series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities 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 such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as the case may be, with respect
to such Securities.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1302 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with
-82-
<PAGE>
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company shall
be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
__________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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.
ALCO STANDARD CORPORATION
By /s/ Kathleen M. Burns
...........................
Name: Kathleen M. Burns
Title: Vice President
and Treasurer
Attest:
/s/ Karin M. Kinney
...........................
Title: Corporate Counsel
and Assistant Secretary
-83-
<PAGE>
FIRST FIDELITY BANK, N.A.
By /s/ Melissa Matthews
...........................
Name: Melissa Matthews
Title: Vice President
Attest:
/s/ Robert Frier
...........................
Title: Vice President
-84-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF CHESTER )
On the 11th day of December, 1995, before me personally came Kathleen
M. Burns, to me known, who, being by me duly sworn, did depose and say that she
is Vice President and Treasurer of Alco Standard Corporation, one of the
corporations described in and which executed the foregoing instrument; that she
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 she signed his name thereto by like
authority.
/s/ Gloria Rising
................................
Notary Public
STATE OF NEW JERSEY )
) SS.:
COUNTY OF ESSEX )
On the 11th day of December, 1995, before me personally came Melissa
Matthews, to me known, who, being by me duly sworn, did depose and say that she
is Vice President of First Fidelity Bank, N.A., one of the corporations
described in and which executed the foregoing instrument; that she 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 she signed her name thereto by like authority.
/s/ Viral M. Modi
................................
Notary Public
-85-
<PAGE>
Exhibit 4.1
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Alco
Standard Corporation or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
ALCO STANDARD CORPORATION
6-3/4% Bonds due December 1, 2025
No. GB-1 $200,000,000
CUSIP No. 013788AE4
Alco Standard Corporation, a corporation duly organized and existing under the
laws of Ohio (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of TWO
----------
HUNDRED MILLION DOLLARS on December 1, 2025, and to pay interest thereon from
December 11, 1995 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year, commencing June 1, 1996, at the rate of 6-3/4% per
annum, until the principal hereof is paid or made available for payment, and any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of 6-3/4% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
<PAGE>
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Philadelphia, Pennsylvania, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: December 11, 1995
ALCO STANDARD CORPORATION
By /s/ Kathleen M. Burns
-------------------------
Attest:
/s/ Karin M. Kinney
- ---------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
as Trustee
By /s/ Melissa Matthews
-----------------------
Authorized Signatory
-3-
<PAGE>
[REVERSE OF SECURITY]
This Security is one of a duly authored issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 11, 1995 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and First Fidelity Bank, National Association,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof limited in aggregate principal amount to $300,000,000.
The Securities of this series are subject to redemption upon at least
30 and not more than 60 days' notice by mail, as a whole or in part, at the
election of the Company, at any time, at a Redemption Price equal to the greater
of (i) 100% of their principal amount or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon discounted to
maturity on a semiannual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Treasury Yield plus 15 basis points, plus in each case
accrued interest to the date of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder, upon the cancellation
hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification
-4-
<PAGE>
of the rights and obligations of the Company and the rights of the Holders of
the Securities of each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon
-5-
<PAGE>
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in global form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, ad neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-6-
<PAGE>
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Alco
Standard Corporation or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
ALCO STANDARD CORPORATION
6-3/4% Bonds due December 1, 2025
No. GB-2 $100,000,000
CUSIP No. 013788AE4
Alco Standard Corporation, a corporation duly organized and existing under the
laws of Ohio (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of ONE
----------
HUNDRED MILLION DOLLARS on December 1, 2025, and to pay interest thereon from
December 11, 1995 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year, commencing June 1, 1996, at the rate of 6-3/4% per
annum, until the principal hereof is paid or made available for payment, and any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of 6-3/4% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
<PAGE>
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Philadelphia, Pennsylvania, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: December 11, 1995
ALCO STANDARD CORPORATION
By /s/ Kathleen M. Burns
------------------------
Attest:
/s/ Karin M. Kinney
- -----------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
as Trustee
By /s/ Melissa Matthews
-----------------------
Authorized Signatory
-3-
<PAGE>
[REVERSE OF SECURITY]
This Security is one of a duly authored issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 11, 1995 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and First Fidelity Bank, National Association,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof limited in aggregate principal amount to $300,000,000.
The Securities of this series are subject to redemption upon at least
30 and not more than 60 days' notice by mail, as a whole or in part, at the
election of the Company, at any time, at a Redemption Price equal to the greater
of (i) 100% of their principal amount or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon discounted to
maturity on a semiannual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Treasury Yield plus 15 basis points, plus in each case
accrued interest to the date of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder, upon the cancellation
hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification
-4-
<PAGE>
of the rights and obligations of the Company and the rights of the Holders of
the Securities of each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon
-5-
<PAGE>
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in global form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, ad neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-6-
