<PAGE> 1
As filed with the Securities and Exchange Commission on January 10, 1994
Registration No. 33-51265
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO.1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FEDERAL-MOGUL CORPORATION
(Exact name of Registrant as specified in its charter)
Michigan 38-0533580
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
26555 Northwestern Highway
Southfield, Michigan 48034
(313) 354-7700
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
George N. Bashara, Jr. Esq.
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
(313) 354-7700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
copies to:
Andrew R. Brownstein, Esq. William J. Williams, Jr., Esq.
Wachtell, Lipton, Rosen & Katz Sullivan & Cromwell
299 Park Avenue 125 Broad Street
New York, New York 10171 New York, New York 10004
(212) 371-9200 (212) 558-3722
Approximate date of commencement of proposed sale to public: From time
to time after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or investment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
reinvestment plans, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Each Class of Amount to be Price Per Offering Registration
Securities to be Registered Registered Unit(1) Price(1) Fee
--------------------------- ---------- ------- ------- ------------
<S> <C> <C> <C> <C>
Debt Securities
Preferred Stock, without
par value (2) 100% $300,000,000 $103,449(3)
Common Stock, without par
value (4)
Warrants
Depositary Shares (5) (6)
Debt Securities (7) (6)
Preferred Stock, without
par value (8) (6)
Common Stock, without
par value (4)(9) (6)
</TABLE>
(1) Estimated solely for purposes of determining the registration
fee.
(2) In no event will the aggregate initial offering price of all
Securities issued pursuant to this Registration Statement as
may be offered from time to time exceed $300,000,000 or the
equivalent thereof in one or more foreign currencies, currency
units or composite currencies, including the European Currency
Units. If any Debt Securities are issued at an original issue
discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering
price of $300,000,000. Any securities registered hereunder may
be sold separately or as units with other securities registered
hereunder.
(3) Previously Paid
(4) Includes Preferred Stock Purchase Rights. Prior to the
occurrence of certain events, the Rights will not be
exercisable or evidenced separately from the Common Stock.
(5) Such indeterminate number of Depositary Shares to be evidenced
by Depositary Receipts issued pursuant to a Deposit Agreement.
In the event the Registrant elects to offer to the public
fractional interests in shares of the Preferred Stock registered
hereunder, or in the event fractional interests in shares of
Preferred Stock are issued upon conversion of Debt Securities
or exercise of Warrants registered hereunder, shares of
Preferred Stock will be issued to the Depositary under the
Deposit Agreement and Depositary Receipts will be distributed to
those persons acquiring such fractional interests.
(6) No separate consideration will be received for (i) the Depositary
Shares, (ii) the Debt Securities issuable upon conversion of
other Debt Securities or Preferred Stock, (iii) the Preferred
Stock issuable upon conversion of Debt Securities, or (iv) the
Common Stock issuable upon conversion of, or in exchange for,
Debt Securities or Preferred Stock.
(7) Such indeterminate amount of Debt Securities as may be issued
upon conversion of other Debt Securities or Preferred Stock.
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(8) Such indeterminate amount of Preferred Stock as may be
issued upon conversion of Debt Securities.
(9) Such indeterminate number of shares of Common Stock as
may be issued upon conversion of, or in exchange for, Debt
Securities or Preferred Stock.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act
of 1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
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[PRELIMINARY PROSPECTUS LEGEND]
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities has
been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior to
the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the solicitation
of any offer to buy nor shall there be any sale of these securities in
any State in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of
any such State.
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PROSPECTUS
FEDERAL-MOGUL CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
Federal-Mogul Corporation ("Federal-Mogul" or the "Company")
may from time to time offer, together or separately, its (i) debt
securities ("Debt Securities"), which may be either senior debt
securities ("Senior Debt Securities") or subordinated debt
securities ("Subordinated Debt Securities"), consisting of
debentures, notes and/or other unsecured evidences of indebtedness
in one or more series; (ii) shares of its Preferred Stock
("Preferred Stock"), which may be issued in the form of depositary
shares evidenced by Depositary Receipts ("Depositary Shares"); (iii)
shares of its Common Stock, without par value (the "Common Stock");
and (iv) warrants to purchase securities of the Company as shall be
designated by the Company at the time of the offering (the
"Warrants") in amounts, at prices and on terms to be determined at
the time of the offering. The Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and Warrants are collectively
called the "Securities."
The Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances at an aggregate initial offering
price not to exceed $300,000,000 or its equivalent (based on the
applicable exchange rate at the time of sale) in one or more foreign
currencies, currency units, composite currencies or in amounts
determined by reference to an index as shall be designated by the
Company.
The Senior Debt Securities when issued will rank on a parity
with all other unsecured and unsubordinated indebtedness of the
Company, and the Subordinated Debt Securities when issued will be
subordinated as described in the accompanying Prospectus Supplement
(the "Prospectus Supplement"). Certain specific terms of the
particular Securities in respect of which this Prospectus is being
delivered are set forth in the Prospectus Supplement, including, where
applicable, (i) in the case of Debt Securities, the title, aggregate
principal amount, denominations, maturity, any interest rate (which
may be fixed or variable) and time of payment of any interest, any
terms for redemption at the option of the Company or the holder, any
terms for sinking fund payments, any terms for conversion into other
securities, currency or currencies of denomination and
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payment, if other than U.S. dollars, any listing on a
securities exchange and any other terms in connection with the
offering and sale of the Debt Securities in respect of which this
Prospectus is delivered, as well as the initial public offering price;
(ii) in the case of Preferred Stock, the specific title, the aggregate
amount, any dividend (including the method of calculating payment of
dividends), liquidation, redemption, voting and other rights, any terms
for any conversion or exchange into other Securities, any listing on a
securities exchange, the initial public offering price and any other
terms; (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of offering thereof; and (iv) in the case
of Warrants, the designation and number, the exercise price, any
listing of the Warrants or the underlying Securities on a securities
exchange and any other terms in connection with the offering, sale and
exercise of the Warrants.
The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax
considerations relating to the Securities covered by the Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock
Exchange under the trading symbol "FMO." Any Common Stock sold
pursuant to a Prospectus Supplement will be listed on such exchange,
subject to official notice of issuance.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Securities will be sold directly, through agents,
underwriters or dealers as designated from time to time, or through a
combination of such methods. If agents of the Company or any dealers
or underwriters are involved in the sale of the Securities in respect
of which this Prospectus is being delivered, the names of such agents,
dealers or underwriters and any applicable commissions or discounts are
set forth in or may be calculated from the Prospectus Supplement with
respect to such Securities.
The date of this Prospectus is January 10, 1994.
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NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS, THE ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED
INCORPORATED BY REFERENCE HEREIN, AND ANY INFORMATION OR
REPRESENTATIONS NOT CONTAINED HEREIN OR THEREIN MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT, DEALER
OR UNDERWRITER. THIS PROSPECTUS OR PROSPECTUS SUPPLEMENT DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH
INFORMATION.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed with the Securities and
Exchange Commission (the "Commission"), pursuant to Section 13
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"):
(i) an Annual Report on Form 10-K for the year ended December
31, 1992, as amended by a Form 8 dated April 19, 1993;
(ii) Quarterly Reports on Form 10-Q for the quarterly periods
ended September 30, 1993 dated November 15, 1993, June 30, 1993
dated August 13, 1993 and March 31, 1993 dated May 14, 1993,
amended by a Form 10-QA dated June 25, 1993;
(iii) a Form 8-K/A dated December 3, 1993 to a Current Report
on Form 8-K dated November 10, 1993;
(iv) a Form 8 dated January 4, 1993 to a Current Report on
Form 8-K dated October 20, 1992; and
(v) a Form 8 dated April 5, 1993 to a Current Report on Form
8-K dated December 31, 1992;
which are hereby incorporated by reference in and made a part
of this Prospectus.
All documents hereafter filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in and to be a part of this Prospectus from
the date of filing of such documents. Any statement contained in a
document incorporated by reference or deemed to be incorporated herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE
WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE
DOCUMENTS (NOT INCLUDING EXHIBITS TO SUCH DOCUMENTS, UNLESS
SUCH EXHIBITS ARE INCORPORATED BY REFERENCE IN SUCH DOCUMENTS)
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ARE AVAILABLE WITHOUT CHARGE UPON WRITTEN OR ORAL REQUEST
DIRECTED TO: GEORGE N. BASHARA, JR., SECRETARY, FEDERAL-MOGUL
CORPORATION, 26555 NORTHWESTERN HIGHWAY, SOUTHFIELD, MICHIGAN
48034 (TELEPHONE: (313) 354-7700).
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Exchange Act and in accordance therewith
files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other
information may be inspected and copies may be obtained at the
principal office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following regional offices
of the Commission: Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and 7
World Trade Center, 13th Floor, New York, New York 10048.
Copies of such materials can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Reports, proxy
statements and other information concerning the Company can
also be inspected at the offices of the New York Stock
Exchange, Inc. ("NYSE"), 20 Broad Street, New York, New York
10005; and the Pacific Stock Exchange, Inc., 618 South Spring
Street, Los Angeles, California 90014, and 301 Pine Street, San
Francisco, California 94104.
Federal-Mogul has filed with the Commission a
Registration Statement (herein, together with all amendments
thereto, called the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"),
with respect to the securities offered hereby. This
Prospectus does not contain all of the information included
in the Registration Statement and the exhibits and schedules
thereto. Statements contained in this Prospectus as to the
contents of any contract or other document referred to herein
and filed as an exhibit to the Registration Statement are not
necessarily complete, and, in each instance, reference is made
to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference. For further
information with respect to Federal-Mogul and the securities,
reference is hereby made to the Registration Statement and the
exhibits and schedules thereto.
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THE COMPANY
Federal-Mogul is a global distributor and
manufacturer of a broad range of precision parts, primarily
vehicular components for automobiles, light trucks, heavy duty
trucks and farm and construction vehicles and industrial
products. Through the Company's worldwide distribution
network, Federal-Mogul sells replacement parts in the vehicular
aftermarket (the "Aftermarket") to independent warehouse
distributors, local parts suppliers and retail parts stores.
The Company also sells parts to original equipment ("OE")
manufacturers, principally the major automotive manufacturers
in the United States and Europe.
In 1992, the Company's net sales were $1,264 million.
For the nine month periods ended September 30, 1993 and 1992,
the Company's net sales were $1,182.3 million and $905.8 million,
respectively. Of net sales for the nine month period
ended September 30, 1993, Aftermarket and OE products
represented 63% and 37%, respectively.
The Company was incorporated in 1924 under Michigan
law to carry on a business begun in 1900. The Company's
executive offices are located at 26555 Northwestern Highway,
Southfield, Michigan 48034, telephone number (313) 354-7700.
USE OF PROCEEDS
Except as otherwise described in the accompanying
Prospectus Supplement or any Pricing Supplement, the net
proceeds from the sale of Securities will be used for general
corporate purposes, which may include refinancings of
indebtedness, including amounts outstanding under the
Company's Second Amended and Restated Revolving Credit
Agreement, dated October 19, 1993, working capital, capital
expenditures and acquisitions.
RECENT DEVELOPMENTS
In October 1993, the Company acquired from SPX
Corporation ("SPX") its Sealed Power Replacement division
("SPR"), SPX's U.S. and Canadian automotive aftermarket
operations (the "Acquisition"), for approximately $143 million.
See "Selected Financial Data for SPR" and "Selected Pro Forma
Combined Condensed Financial Data." These operations
distribute engine and chassis components to the North
American aftermarket. The Company also completed a long-term
trademark agreement under which the Company has become the
exclusive distributor of engine and chassis parts sold under
the Sealed Power(R) and Speed-Pro(R) brand names in the United
States and Canada. The Company
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<PAGE> 11
acquired the non-exclusive right to use these trademarks
throughout the rest of the world. The Company also entered
into a non-competition agreement for a period of seven years.
The Acquisition furthered the Company's strategy of
emphasizing Aftermarket product sales and the development of
this aspect of the business.
SPR distributes a full line of chassis parts (15% of
1992 sales) and engine parts (83% of 1992 sales) to the
automotive Aftermarket to over 2,500 wholesale and retail
distribution outlets. Net sales in 1992 were $163.2 million.
The Company believes that the Acquisition will (i)
allow the Company to broaden its customer base, (ii) increase
the Company's product offerings in the Aftermarket business,
particularly in the case of heavy truck, agricultural and
construction parts, and (iii) allow the Company to realize
substantial cost savings through the consolidation of the
distribution system of the two companies.
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RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
RATIO OF EARNINGS TO FIXED CHARGES:(A)
<TABLE>
<CAPTION>
Pro Forma Pro Forma
Nine Months Year Ended Years Ended December 31,
Ended September Nine Months Ended December 31, ----------------------------------------
30, 1993 (B) September 30, 1993 1992 (B, C) 1992 1991 1990 1989 1988
--------------- ------------------ ------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2.87 2.76 1.43 1.13 (D) 1.03 2.84 3.31
</TABLE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
DIVIDENDS (A):
<TABLE>
<CAPTION>
Pro Forma Pro Forma
Nine Months Year Ended Years Ended December 31,
Ended September Nine Months Ended December 31, ----------------------------------------
30, 1993 (B) September 30, 1993 1992 (B, C) 1992 1991 1990 1989 1988
-------------- ------------------ ----------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2.43 2.27 1.32 1.10 (D) 1.02 2.51 3.31
</TABLE>
The ratio of earnings to fixed charges has been
computed by dividing earnings by fixed charges. The ratio of
earnings to fixed charges and preferred stock dividends has
been computed by dividing earnings by the sum of fixed charges
and preferred stock dividend requirements. Earnings consist of
income before income taxes plus fixed charges excluding
capitalized interest. Fixed charges consist of interest on
all indebtedness, amortization of debt issuance costs and the
portion of rental expense representative of interest.
(A) The Company guarantees the debt of the Federal-Mogul
Employee Stock Ownership Plan ("ESOP"); the fixed
charges of the ESOP are not included in the above
calculations.
(B) Gives effect to the Acquisition as if it occurred
at the beginning of the period presented.
(C) Gives effect to the acquisition of the automotive
aftermarket business of TRW on October 20, 1992
as if it occurred at the beginning of the period
presented.
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<PAGE> 13
(D) As a result of a special charge of $25.0 million,
earnings in 1991 were $14.1 million, which were less
than 1991 fixed charges of $33.8 million.
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<PAGE> 14
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general
terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may not apply
to the Debt Securities so offered will be described in the
Prospectus Supplement relating to such Debt Securities.
The Senior Debt Securities are to be issued under an
Indenture (the "Senior Indenture"), to be entered into between the
Company and Continental Bank, National Association, as trustee.
The Subordinated Debt Securities are to be issued under a
separate Indenture (the "Subordinated Indenture"), to be entered into
between the Company and Continental Bank, National Association, as
trustee. The Senior Indenture and the Subordinated Indenture are
sometimes referred to collectively as the "Indentures." Copies of
the Senior Indenture and the Subordinated Indenture have been filed
as exhibits to the Registration Statement. Continental Bank, National
Association, as trustee under the Senior Indenture or the
Subordinated Indenture, as applicable, is referred to herein as the
"Applicable Trustee."
The following summaries of certain provisions of the
Senior Debt Securities, the Subordinated Debt Securities and
the Indentures do not purport to be complete and are subject,
and are qualified in their entirety by reference, to all the
provisions of the Indenture applicable to a particular series
of Debt Securities (the "Applicable Indenture"), including the
definitions therein of certain terms. Wherever particular
Sections, Articles or defined terms of the Indentures are
referred to, it is intended that such Sections, Articles or
defined terms shall be incorporated by reference herein.
Section and Article references used herein are references to
the Applicable Indenture. Capitalized terms not otherwise
defined herein shall have the meanings given to them in the
Applicable Indenture.
GENERAL
The Indentures do not limit the aggregate principal
amount of Debt Securities that may be issued thereunder, and
each Indenture provides that Debt Securities may be issued
thereunder from time to time in one or more series. Unless
otherwise specified in the Prospectus Supplement, the Senior
Debt Securities when issued will be unsecured and
unsubordinated obligations of the Company and will rank
equally and ratably with all other unsecured and
unsubordinated indebtedness
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<PAGE> 15
of the Company. The Subordinated Debt Securities when issued
will be subordinated in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Subordinated
Indenture) of the Company as described in the Prospectus Supplement
applicable to the offering of Subordinated Debt Securities.
Reference is made to the Prospectus Supplement
relating to the particular series of Debt Securities offered
thereby for a description of the following terms or additional
provisions of the Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt
Securities or Subordinated Debt Securities;
(3) any limit on the aggregate principal amount of
the Debt Securities;
(4) the Person to whom any interest on a Debt
Security of such series will be payable, if other than
the Person in whose name that Debt Security is registered at the close
of business on the Regular Record Date for such interest;
(5) the date or dates on which the principal of the
Debt Securities will be payable;
(6) the rate or rates at which the Debt Securities
will bear interest, if any;
(7) the date or dates from which any such interest
will accrue and the dates on which any such interest will
be payable and the record dates for such interest
payments;
(8) the place or places where the principal of and
any premium and interest on the Debt Securities will be
payable;
(9) the period or periods within which, the price or
prices at which, and the terms and conditions on which the
Debt Securities may be redeemed, in whole or in part, at
the option of the Company;
(10) the obligation, if any, of the Company to redeem
or purchase the Debt Securities pursuant to any sinking
fund or analogous provision 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 on which
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<PAGE> 16
the Debt Securities will be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(11) the terms and conditions, if any, pursuant to
which such Debt Securities are convertible or exchangeable into a
security or securities of the Company;
(12) the denominations in which the Debt
Securities will be issuable, if other than denominations
of $1,000 and any integral multiple thereof;
(13) if the amount of principal of or any
premium or interest on any Debt Securities may be
determined with reference to an index or pursuant to a
formula, the manner in which such amounts will be
determined;
(14) 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 of the Debt Securities will be payable
(and the manner in which the equivalent thereof in the
currency of the United States of America is to be
determined for any purpose, including for the purpose of
determining the principal amount deemed to be Outstanding
at any time);
(15) if the principal of or any premium or
interest on the Debt Securities is to be payable, at the
election of the Company or the Holder thereof, in one or
more currencies or currency units other than those in which
the Debt Securities are stated to be payable, the
currency, currencies or currency units in which payment of
any such amount as to which such election is made will 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 is
to be determined);
(16) if other than the entire principal
amount thereof, the portion of the principal amount of
any of the Debt Securities which will be payable upon
declaration of acceleration of the maturity thereof;
(17) if the principal amount payable at the
Stated Maturity of any of the Debt Securities will not be
determinable as of any one or more dates prior to the
Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any
purpose, including the principal amount thereof which
will be due and payable upon any maturity other than the
Stated Maturity or which will be deemed to be Outstanding
as of any such date (or, in any such case, the manner in
which such deemed principal amount is to be determined);
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<PAGE> 17
(18) if applicable, that the Debt Securities, in
whole or any specified part, are defeasible pursuant to
the provisions of the Applicable Indenture described under
"Defeasance and Covenant Defeasance";
(19) whether any of the Securities will be issuable
in whole or in part in the form of one or more Global Securities;
(20) any addition to or change in the Events of
Default applicable to any of the Debt Securities and any
change in the right of the Applicable Trustee or the
Holders to declare the principal amount of any of the
Debt Securities due and payable;
(21) any addition to or change in the covenants in
the Applicable Indenture;
(22) if the Debt Securities are Subordinated Debt
Securities, the subordination provisions and the
definition of Senior Indebtedness which will be
applicable to such Subordinated Debt Securities; and
(23) any other terms of the Debt Securities not
inconsistent with the provisions of the Applicable
Indenture. (Sections 301 and 901)
Debt Securities may be issued as Original Issue
Discount Securities to be sold at a substantial discount
below their principal amount. Certain special United States
federal income tax considerations applicable to Debt
Securities sold at an original issue discount will be described
in the Prospectus Supplement relating thereto. In addition,
certain special United States federal income tax or other
considerations applicable to any Debt Securities which are
denominated in a currency or currency unit other than United
States dollars may be described in the applicable Prospectus
Supplement relating thereto.
Unless otherwise provided in the Prospectus
Supplement relating thereto, principal of and any premium and
interest on the Debt Securities will be payable, and the Debt
Securities will be exchangeable and transfers thereof will be
registrable, at the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, except that, at the
option of the Company, interest may be paid by mailing a check
to the address of the Person entitled thereto as it appears in
the Security Register. (Sections 202, 305 and 1002)
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<PAGE> 18
Unless otherwise indicated in the Prospectus
Supplement relating thereto, the Debt Securities will be
issued only in fully registered form, without coupons, and in
denominations of $1,000 and integral multiples thereof.
(Section 302) No service charge will be made for any
registration of transfer or exchange of Debt Securities, but
the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection
therewith. (Section 305) The Indentures also provide that the
Debt Securities of any series, if so specified with respect to
a particular series, may be issued in permanent global form.
See "Global Debt Securities."
Unless otherwise set forth in the applicable
Prospectus Supplement, neither the Indentures nor the Debt
Securities will contain provisions that would afford the Debt
Securities protection in the event of a takeover,
recapitalization or similar restructuring involving the
Company which could adversely affect the Debt Securities.
SUBORDINATION
The Subordinated Debt Securities will be subordinated
and junior in right of payment, to the extent set forth in the
applicable Prospectus Supplement, to all "Senior Indebtedness"
of the Company as defined in the applicable Prospectus
Supplement.
EVENTS OF DEFAULT
Unless otherwise specified in the Prospectus
Supplement relating to a particular series of Debt Securities,
the following events will constitute an Event of Default under
the Indentures with respect to Debt Securities of any series:
(a) failure to pay principal of or any premium on any Debt
Security of that series when due (in the case of the
Subordinated Indenture, whether or not such payment is
prohibited by the subordination provisions); (b) failure to
pay any interest on any Debt Security of that series when due,
and such failure continues for 30 days (in the case of the
Subordinated Indenture, whether or not such payment is
prohibited by the subordination provisions); (c) failure to
deposit any sinking fund payment, when due, in respect of any
Debt Security of that series (in the case of the Subordinated
Indenture, whether or not such deposit is prohibited by the
subordination provisions); (d) failure to perform any other
covenant of the Company in the Applicable Indenture or such
Debt Security (other than a covenant included in the Applicable
Indenture solely for the benefit of a series other than that
series), continued for 60 days after written
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<PAGE> 19
notice has been given by the Applicable Trustee, or the Holders
of at least 10% in principal amount of the Outstanding Debt
Securities of that series, as provided in the Applicable
Indenture; and (e) certain events in bankruptcy, insolvency or
reorganization. (Section 501)
If an Event of Default (other than an Event of
Default described in clause (e) above) with respect to the
Debt Securities of any series at the time Outstanding shall
occur and be continuing, either the Applicable Trustee or the
Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series by notice as
provided in the Applicable Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case
of any Debt Security that is an Original Issue Discount
Security or the principal amount of which is not then
determinable, such portion of the principal amount of such Debt
Security, or such other amount in lieu of such principal
amount, as may be specified in the terms of such Debt
Security) to be due and payable immediately. If an Event of
Default described in clause (e) above with respect to the Debt
Securities of any series at the time Outstanding shall occur,
the principal amount of all the Debt Securities of that series
(or, in the case of any such Original Issue Discount
Security or other Debt Security, such specified amount) will
automatically, and without any action by the Applicable
Trustee or any Holder, become immediately due and payable.
After any such acceleration, but before a judgment or decree
based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that
series may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, other than the
non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the
Applicable Indenture. (Section 502) For information as to
waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Applicable
Indenture relating to the duties of the Applicable Trustee in
case an Event of Default shall occur and be continuing, the
Applicable Trustee will be under no obligation to exercise any
of its rights or powers under the Applicable Indenture at the
request or direction of any of the Holders, unless such Holders
shall have offered to the Applicable Trustee reasonable
indemnity. (Section 603) Subject to such provisions for the
indemnification of the Applicable Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any
remedy available
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<PAGE> 20
to the Applicable Trustee or exercising any trust or power
conferred on the Applicable Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have
any right to institute any proceeding with respect to the
Applicable Indenture, or for the appointment of a receiver or
a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Applicable Trustee written
notice of a continuing Event of Default with respect to the
Debt Securities of that series, (ii) the Holders of at least
25% in aggregate principal amount of the Outstanding Debt
Securities of that series have made written request, and such
Holder or Holders have offered reasonable indemnity, to the
Applicable Trustee to institute such proceeding as trustee,
and (iii) the Applicable Trustee has failed to institute such
proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer.
(Section 507) However, such limitations do not apply to a suit
instituted by a Holder of a Debt Security for the enforcement
of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date
specified in such Debt Security. (Section 508)
The Company will be required to furnish to the
Applicable Trustee annually a statement by certain of its
officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the
terms, provisions and conditions of the Applicable Indenture
and, if so, specifying all such known defaults. (Section 1004)
CONVERSION RIGHTS
The terms on which Debt Securities of any series are
convertible into Common Stock or other securities of the
Company will be set forth in the Prospectus Supplement
relating thereto. Such terms will include provisions as to
whether conversion is mandatory or at the option of the Holder
thereof and may include provisions pursuant to which the
number of shares of Common Stock or other securities of the
Company to be received by the Holders of Debt Securities would
be subject to adjustment.
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<PAGE> 21
GLOBAL DEBT SECURITIES
If any Debt Securities of a series are to be issued
in global form, the Prospectus Supplement relating thereto will
describe the circumstances, if any, under which beneficial
owners of interests in any such global Debt Security ("Global
Security") may exchange such interests for Debt Securities of
such series and of like tenor and principal amount in any
authorized form and denomination. Principal of and any premium
and interest on a Global Security will be payable in the
manner described in the Prospectus Supplement relating thereto.
(Sections 204 and 305)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of
any of the Debt Securities under the Indentures, may
consolidate with or merge into, or convey, transfer or lease
its properties and assets substantially as an entirety to, any
Person, and may permit any Person to merge into, or convey,
transfer or lease its properties and assets substantially as
an entirety to, the Company, provided (i) that any successor
Person must be a corporation, partnership, trust or other
entity organized and validly existing under the laws of any
domestic jurisdiction and must assume the Company's obligations
on the Debt Securities and under the Indentures, (ii) that
after giving effect to the 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 occurred and be
continuing and (iii) that certain other conditions are met.
Upon any consolidation or merger into any other Person or any
conveyance, transfer or lease of the Company's assets
substantially as an entirety to any Person, the successor
Person will succeed to, and be substituted for, the Company
under the Indentures, and the Company, except in the case of a
lease, will be relieved of all obligations and covenants under
the Indentures and the Debt Securities to the extent it was the
predecessor Person. (Article Eight)
MODIFICATION AND WAIVER
Modifications and amendments of the Senior Indenture
and the Subordinated Indenture may be made by the Company and
the Trustee under the Applicable Indenture, only with the
consent of the Holders of a majority in aggregate principal
amount of each series of the outstanding Debt Securities issued
under the Applicable Indenture and affected by such
modification or
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<PAGE> 22
amendment unless a greater percentage of such aggregate
principal amount is specified in the applicable Prospectus Supplement;
provided, however, that no such modification or amendment may, without
the consent of each Holder of such Debt Security affected thereby, (a)
change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any such Debt Security, (b) reduce the
principal amount of, or any premium or interest on, any such Debt
Security, (c) reduce the amount of principal of an Original Issue
Discount Security or any other Debt Security payable upon
acceleration of the maturity thereof, (d) change the place or currency
of payment of principal of, or any premium or interest on, any such
Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt
Security, (f) in the case of the Subordinated Indenture, modify the
subordination provisions in a manner adverse to the Holders of the
Subordinated Debt Securities, (g) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the
Applicable Indenture, (h) reduce the percentage in principal amount of
outstanding Debt Securities of any series necessary for waiver of
compliance with certain provisions of the Applicable Indenture or for
waiver of certain defaults or (i) modify such provisions with respect
to modification and waiver. (Section 902 of the Indentures and
Section 907 of the Subordinated Indenture)
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series may waive compliance
by the Company with certain restrictive provisions of the
Applicable Indenture and, if applicable, such Debt Securities,
unless a greater percentage of such aggregate principal amount
is specified in the applicable Prospectus Supplement. (Section
1008) The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series may waive any past
default under the Applicable Indenture, except a default in the
payment of principal, premium or interest and certain covenants
and provisions of the Applicable Indenture and, if applicable,
such Debt Securities which may not be amended without the
consent of the Holder of each Outstanding Debt Security of
such series affected. (Section 513)
OUTSTANDING DEBT SECURITIES
The Indentures provide that in determining whether
the Holders of the requisite principal amount of the
Outstanding Debt Securities have given or taken any direction,
notice, consent, waiver or other action under the Applicable
Indenture as of any date, (i) the portion of the principal
amount of an
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<PAGE> 23
Original Issue Discount Security that will be deemed to be
Outstanding for such purpose will be the amount of the
principal thereof that would be due and payable as of such
date upon acceleration of the maturity thereof to such date,
(ii) if, as of such date, the principal amount payable at the
Stated Maturity of a Debt Security is not determinable (for
example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of
such date will be an amount determined in the manner prescribed
for such Debt Security and (iii) the portion of the principal
amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be
Outstanding will be the U.S. dollar equivalent, determined as
of such date in the manner prescribed for such Debt Security,
of the principal amount of such Debt Security (or, in the case
of a Debt Security described in clause (i) or (ii) above, of
the amount described in such clause). Certain Debt
Securities, including those for whose payment or redemption
money has been deposited or set aside in trust for the Holders
and those that have been fully defeased, will not be deemed to
be Outstanding. In addition, Debt Securities owned by the
Company or any of its Affiliates will not be deemed to be
Outstanding. (Section 101)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide, if such provision is made
applicable to the Debt Securities of any series pursuant to
Section 301 of the Applicable Indenture (which will be
indicated in the Prospectus Supplement relating thereto), that
the Company may elect either (A) to defease and be discharged
from any and all its obligations with respect to such Debt
Securities (including, in the case of Subordinated Debt
Securities, the subordination provisions which will be
described in the applicable Prospectus Supplement and except
for the obligations to exchange or register the transfer of
such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an
office or agency with respect to the Debt Securities and to
hold moneys for payment in trust) ("defeasance") or (B) to be
released from its obligations with respect to such Debt
Securities concerning certain restrictive covenants (including,
in the case of Subordinated Debt Securities, the subordination
provisions which will be described in the applicable Prospectus
Supplement) which are subject to covenant defeasance
("covenant defeasance"), and the occurrence of certain Events
of Default, which are described above in clause (d) (with
respect to such restrictive covenants) and clause (e) under
"Events of Default" and any that may be described in the
applicable Prospectus Supplement, shall no longer be an Event
of Default, in each case, upon deposit with the Applicable
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<PAGE> 24
Trustee (or other qualifying trustee), in trust for such
purpose, money or U.S. Government Obligations, or both (or
Foreign Government Obligations (as defined) in the case of
Debt Securities denominated in foreign currencies), which,
through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in
an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities.
As a condition to defeasance or covenant defeasance,
the Company must deliver to the Applicable Trustee an Opinion
of Counsel (as specified in the Applicable Indenture) to the
effect that Holders of such Debt Securities will not recognize
gain or loss for federal income tax purposes as a result of
such defeasance or 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
defeasance or covenant defeasance had not occurred. The
Company may exercise its defeasance option with respect to
such Debt Securities notwithstanding its prior exercise of
its covenant defeasance option. If the Company exercises its
defeasance option, payment of such Debt Securities may not be
accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of such
Debt Securities may not be accelerated by reference to the
covenants noted under clause (B) above. In the event the
Company omits to comply with its remaining obligations with
respect to such Debt Securities under the Indentures after
exercising its covenant defeasance option and such Debt
Securities are declared due and payable because of the
occurrence of any Event of Default, the amount of money and
U.S. Government Obligations (or Foreign Government Obligations
in the case of Debt Securities denominated in foreign
currencies) on deposit in the defeasance trust may be
insufficient to pay amounts due on the Debt Securities of such
series at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in
respect of such payments. (Article Thirteen)
GOVERNING LAW
The Indentures and the Debt Securities will be
governed by, and construed in accordance with, the law of the
State of New York, without regard to principles of conflicts of laws.
(Section 112)
REGARDING THE TRUSTEE
Continental Bank, National Association, is the Trustee under
the Senior Indenture and the Subordinated Indenture. The Trustee may
be deemed to have a conflicting interest and may be required to resign
as Trustee if at the time of a default under one of the Indentures it
is a creditor of the Company. In addition, the Trustee will be
required to resign as Trustee under one of the Indentures if at the
time of default under one Indenture Debt Securities have been issued
under the other Indenture. The Trustee or its affiliates perform
certain commercial banking services for the Company in the ordinary
course of business.
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<PAGE> 25
Notices should be directed to 231 South LaSalle Street, Chicago
Illinois, 60697, Attn: Corporate Trust Division.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of
certain general terms of the Company's Preferred Stock to
which any Prospectus Supplement may relate. Certain terms of
any series of Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement
relating thereto. If so indicated in the Prospectus
Supplement, the terms of any series may differ from the terms
set forth below. The description of certain provisions of the
Company's Preferred Stock does not purport to be complete and
is subject to and qualified in its entirety by reference to the
provisions of the Company's Second Restated Articles of
Incorporation, as amended (the "Articles"), and the Certificate
of Designation (the "Certificate of Designation") relating to
each particular series of Preferred Stock which will be filed
or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such
Preferred Stock.
GENERAL
Under the Company's Articles, the Board of
Directors of the Company is authorized, without further
stockholder action, to provide for the issuance of up to
5,000,000 shares of preferred stock (the "Preferred Stock").
The Preferred Stock may be issued in one or more series, with
such designations of titles; dividend rates; any redemption
provisions; special or relative rights in the event of
liquidation, dissolution, distribution or winding up of the
Company; any sinking fund provisions; any conversion
provisions; any voting rights thereof; and any other
preferences, privileges, powers, rights, qualifications,
limitations and restrictions, as shall be set forth as and when
established by the Board of Directors of the Company. The
shares of any series of Preferred Stock will be, when issued,
fully paid and non-assessable and holders thereof will have no
preemptive rights in connection therewith.
The liquidation preference of any series of Preferred
Stock is not necessarily indicative of the price at which
shares of such series of Preferred Stock will actually trade at
or after the time of their issuance. The market price of any
series of Preferred Stock can be expected to fluctuate with
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<PAGE> 26
changes in market and economic conditions, the financial
condition and prospects of the Company and other factors that
generally influence the market price of securities.
RANK
Any series of Preferred Stock will, with respect to
rights on liquidation, winding up and dissolution, rank (i)
senior to all classes of Common Stock and to all equity
securities issued by the Company, the terms of which
specifically provide that such equity securities will rank
junior to such series of Preferred Stock (the "Junior
Liquidation Securities"); (ii) on a parity with all equity
securities issued by the Company, the terms of which
specifically provide that such equity securities will rank on a
parity with such series of Preferred Stock ("Parity
Liquidation Securities"); and (iii) junior to all equity
securities issued by the Company, the terms of which
specifically provide that such equity securities will rank
senior to such series of Preferred Stock (the "Senior
Liquidation Securities"). In addition, any series of Preferred
Stock will, with respect to dividend rights, rank (i) senior to
all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank
junior to such series of Preferred Stock and, to the extent
provided in the applicable Certificate of Designation, to
Common Stock, (ii) on a parity with all equity securities
issued by the Company, the terms of which specifically provide
that such equity securities will rank on a parity with such
series of Preferred Stock and, to the extent provided in the
applicable Certificate of Designation, to Common Stock ("Parity
Dividend Securities") and (iii) junior to all equity securities
issued by the Company, the terms of which specifically provide
that such equity securities will rank senior to such series of
Preferred Stock. As used in any Certificate of Designation for
these purposes, the term "equity securities" will not include
debt securities convertible into or exchangeable for equity
securities.
DIVIDENDS
Holders of each series of Preferred Stock will be
entitled to receive, when, as and if declared by the Board of
Directors of the Company out of funds legally available
therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such
series of Preferred Stock. Dividends will be payable to
holders of record of Preferred Stock as they appear on the
books of the Company (or, if applicable, the records of the
Depositary referred to below under "Description of Depositary
Shares") on
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<PAGE> 27
such record dates as shall be fixed by the Board of Directors.
Dividends on any series of Preferred Stock may be cumulative or
non-cumulative.
No full dividends may be declared or paid on funds
set apart for the payment of dividends on any series of Preferred
Stock unless dividends shall have been paid or set apart for such
payment on the Parity Dividend Securities. If full dividends are
not so paid, such series of Preferred Stock shall share dividends
pro rata with the Parity Dividend Securities.
CONVERSION AND EXCHANGE
The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, on which shares of that
series are convertible into shares of another series of Preferred
Stock or Common Stock or exchangeable for another series of Preferred
Stock, Common Stock or Debt Securities of the Company. The Common
Stock of the Company is described below under "Description of Common
Stock."
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<PAGE> 28
REDEMPTION
A series of Preferred Stock may be redeemable at any
time, in whole or in part, at the option of the Company or the holder
thereof and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise upon terms and at the redemption prices set
forth in the Prospectus Supplement relating to such series.
In the event of partial redemptions of Preferred
Stock, whether by mandatory or optional redemption, the shares
to be redeemed will be determined by lot or pro rata, as may be
determined by the Board of Directors of the Company, or by any
other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Company
defaults in the payment of the redemption price, dividends will
cease to accrue on shares of Preferred Stock called for
redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, holders of each
series of Preferred Stock that ranks senior to the Junior
Liquidation Securities will be entitled to receive out of
assets of the Company available for distribution to
shareholders, before any distribution is made on any Junior
Liquidation Securities, including Common Stock, distributions
upon liquidation in the amount set forth in the Prospectus
Supplement relating to such
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<PAGE> 29
series of Preferred Stock, plus an amount equal to any accrued
and unpaid dividends. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the
amounts payable with respect to the Preferred Stock of any
series and any other Parity Liquidation Securities are not
paid in full, the holders of the Preferred Stock of such series
and the Parity Liquidation Securities will share ratably in any
such distribution of assets of the Company in proportion to the
full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to
which they are entitled, the holders of such series of
Preferred Stock will not be entitled to any further
participation in any distribution of assets of the Company.
VOTING RIGHTS
Except as indicated below or in the Prospectus
Supplement relating to a particular series of Preferred Stock
or except as expressly required by applicable law, the holders
of shares of Preferred Stock will have no voting rights.
PREFERRED STOCK OUTSTANDING
As of the date hereof, the Company has issued and outstanding
1,600,000 shares of Series D Convertible Exchangeable Preferred Stock
and as of October 15, 1993, 944,668 shares of Series C ESOP Convertible
Preferred Stock. The shares of each issued and outstanding series are
fully paid and nonassessable. The Company has also authorized the
Series B Junior Participating Cumulative Preferred Stock in connection
with its preferred stock purchase rights plan. See "Description of
Preferred Share Purchase Rights."
Series D Convertible Exchangeable Preferred Stock.
The Series D Convertible Exchangeable Preferred Stock bears a
dividend of $3.875 per share per annum. It is senior to the
Common Stock, the Series C ESOP Convertible Preferred Stock
and, when and if issued, the Series B Junior Participating
Cumulative Preferred Stock, as to the payment of dividends and
distributions of assets on liquidation, dissolution and winding
up of the Company.
Such shares provide for a liquidation preference of
$50.00 per share, plus accrued and unpaid dividends.
Holders of Series D Convertible Exchangeable
Preferred Stock have no general voting rights but have the
right to vote in certain events.
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<PAGE> 30
Whenever dividends have not been paid on such shares
or any other class or series of stock ranking pari passu as to
dividends in an aggregate amount equal to six quarterly
dividends (whether or not consecutive), the number of members
of the Company's Board of Directors will be increased by two,
and the holders of such shares, voting separately as a class
with the holders of such pari passu stock with like voting
rights, will be entitled to elect such two additional directors
at any meeting of shareholders at which directors are to be
elected held during the period such dividends remain in
arrears. Such voting rights will continue until there are not
such dividends in arrears.
The Series D Convertible Exchangeable Preferred Stock
may not be redeemed prior to September 20, 1996 and thereafter
may be redeemed by the Company, at its option, in whole or in
part at any time at a redemption price of $52.33 per share,
plus accrued and unpaid dividends, if redeemed prior to
September 10, 1997, and at the following redemption prices per
share, if redeemed during the 12-month period ending September 9:
<TABLE>
<CAPTION>
Price
Year per Share
---- ---------
<S> <C>
1998...................... $51.94
1999...................... 51.55
2000...................... 51.16
2001...................... 50.78
2002...................... 50.39
</TABLE>
and thereafter at $50 per share plus, in each case, accrued and
unpaid dividends. There is no mandatory redemption or sinking
fund obligation with respect to the Series D Convertible
Exchangeable Preferred Stock.
Each holder of Series D Convertible Exchangeable
Preferred Stock has the right, at the holder's option, to
convert any or all such shares into Common Stock at any time at
a ratio (subject to adjustment) of 2.778 shares of Common Stock
for each share of Series D Convertible Exchangeable Preferred
Stock. The conversion rate is further adjusted in the event of
certain transactions involving the Company that would result in
a "Fundamental Change" as defined in the Series D Convertible
Exchangeable Preferred Stock.
The Series D Convertible Exchangeable Preferred Stock
is exchangeable in whole but not in part, at the option of the
Company on a dividend payment date for the Series D Convertible
Exchangeable Preferred Stock, for Convertible Subordinated
Debentures (the "Debentures"). In such event, the holders of
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<PAGE> 31
outstanding Series D Convertible Exchangeable Preferred Stock
will receive $50 principal amount of the Debentures for each
share of such stock so exchanged.
Such Debentures will be unsecured, subordinated
obligations of the Company, will mature on September 10, 2012,
and will pay interest at a rate of 7 3/4% per annum. Each holder
of Debentures will have the right, at the holder's option, to
convert any or all such Debentures into Common Stock at any
time at a ratio (subject to adjustment) of 2.778 shares of
Common Stock for each $50 principal amount of Debentures.
The Debentures will not be redeemable prior to
September 20, 1996, and thereafter may be redeemed by the
Company, at its option, in whole or in part, at any time at a
redemption price of 104.65% of the principal amount, plus
accrued and unpaid interest, if redeemed prior to September 10,
1997, and at the following redemption prices, if redeemed
during the 12-month period ending September 9:
<TABLE>
<CAPTION>
Year Price
---- -------
<S> <C>
1998..................... 103.88%
1999..................... 103.10%
2000..................... 102.33%
2001..................... 101.55%
2002..................... 100.78%
</TABLE>
and thereafter at 100% of the principal amount plus, in each
case, accrued and unpaid interest. There is no mandatory
redemption or sinking fund obligation with respect to the
Debentures.
Series C ESOP Convertible Preferred Stock. The
Series C ESOP Convertible Preferred Stock bears a dividend of
$4.78125 per share per annum, subject to certain adjustments.
The shares of Series C ESOP Convertible Preferred Stock are
convertible into shares of Common Stock at a rate of two shares
of Common Stock per share, subject to certain adjustments. The
shares may only be issued to a trustee acting on behalf of any
employee stock ownership plan or other employee benefit plan of
the Company and will be automatically converted into Common
Stock in the event of any transfer to a person other than a
plan trustee. Such shares have a liquidation preference of
$63.75 per share plus accrued and unpaid dividends. The Series
C ESOP Convertible Preferred Stock is redeemable, in whole or
in part, at the option of the Company at a redemption price per
share currently equal to 104.5% of the liquidation preference,
declining by 75 basis points each January 1, to the liquidation
preference of $63.75 per share on and after January 1, 1999,
plus, in each case, accrued and unpaid dividends. Holders of
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<PAGE> 32
Series C ESOP Convertible Preferred Stock have full voting
rights and vote together with the Common Stock as one class,
each share of the Series C ESOP Convertible Preferred Stock
having such number of votes as equals the number of shares of
Common Stock into which such share could be converted on the
record date for determining the stockholders entitled to vote.
The shares of the Series C ESOP Convertible Preferred Stock
are not subject to any sinking fund provisions and have no
preemptive rights. The shares rank junior to the Series D
Convertible Exchangeable Preferred Stock and rank senior to
the Series B Junior Participating Cumulative Preferred Stock and the
Common Stock as to the payment of dividends and distribution of
assets on liquidation, dissolution and winding up of the
Company.
In the event the Company is unable to pay dividends
on the Series C ESOP Preferred Stock, the Company is required
pursuant to the terms of the ESOP to make a contribution to the
ESOP to satisfy the then current debt service requirements of
the Senior ESOP Note due December 31, 2000 (which obligation
is fully reflected in long-term debt on the Company's balance sheet).
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions
of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts (as defined below)
does not purport to be complete and is subject to and qualified
in its entirety by reference to the forms of Deposit Agreement
and Deposit Receipt relating to the Preferred Stock, included
as exhibits to the Registration Statement of which this
Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer
fractional shares of Preferred Stock, rather than full shares
of Preferred Stock. In the event such option is exercised, the
Company will issue receipts for Depositary Shares, each of
which will represent a fraction (to be set forth in the
Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of Preferred
Stock as described below.
The shares of any series of Preferred Stock
represented by Depositary Shares will be deposited under a
Deposit Agreement (the "Deposit Agreement") between the Company
and a bank or trust company selected by the Company having its
principal office in the United States and having a combined
capital
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and surplus of at least $50,000,000 (the "Depositary").
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of
the Preferred Stock represented thereby (including dividend,
voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary
receipts issued pursuant to the Deposit Agreement (the
"Depositary Receipts"). Depositary Receipts will be
distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the
offering.
Pending the preparation of definitive Depositary
Receipts, the Depositary may, upon the written order of the
Company or any holder of deposited Preferred Stock, execute
and deliver temporary Depositary Receipts which are
substantially identical to, and entitle the holders thereof to
all the rights pertaining to, the definitive Depositary
Receipts. Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary Receipts
will be exchangeable for definitive Depositary Receipts at the
Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or
other cash distributions received in respect of the deposited
Preferred Stock to the record holders of Depositary Shares
relating to such Preferred Stock in proportion to the numbers
of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash,
the Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto. If the
Depositary determines that it is not feasible to make such
distribution, it may, with the approval of the Company, sell
such property and distribute the net proceeds from such sale to
such holders.
REDEMPTION OF STOCK
If a series of Preferred Stock represented by
Depositary Shares is to be redeemed, the Depositary
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Shares will be redeemed from the proceeds received by the
Depositary resulting from the redemption, in whole or in part,
of such series of Preferred Stock held by the Depositary. The
Depositary Shares will be redeemed by the Depositary at a price per
Depositary Share equal to the applicable fraction of the
redemption price per share payable in respect of the shares of
Preferred Stock so redeemed. Whenever the Company redeems
shares of Preferred Stock held by the Depositary, the
Depositary will redeem as of the same date the number of
Depositary Shares representing shares of Preferred Stock so redeemed.
If fewer than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by the
Depositary by lot or pro rata or by any other equitable method as
may be determined by the Depositary.
WITHDRAWAL OF STOCK
Any holder of Depositary Shares may, upon surrender
of the Depositary Receipts at the corporate trust office of the
Depositary (unless the related Depositary Shares have
previously been called for redemption), receive the number of
whole shares of the related series of Preferred Stock and any
money or other property represented by such Depositary
Receipts. Holders of Depositary Shares making such withdrawals
will be entitled to receive whole shares of Preferred Stock on
the basis set forth in the related Prospectus Supplement for
such series of Preferred Stock, but holders of such whole
shares of Preferred Stock will not thereafter be entitled to
deposit such Preferred Stock under the Deposit Agreement or to
receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such
withdrawal exceed the number of Depositary Shares that
represent the number of whole shares of Preferred Stock to be
withdrawn, the Depositary will deliver to such holder at the
same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the
holders of any series of deposited Preferred Stock are entitled
to vote, the Depositary will mail the information contained in
such notice of meeting to the record holders of the Depositary
Shares relating to such series of Preferred Stock. Each record
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holder of such Depositary Shares on the record date (which will
be the same date as the record date for the relevant series of
Preferred Stock) will be entitled to instruct the Depositary as
to the exercise of the voting rights pertaining to the amount
of the Preferred Stock represented by such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable,
to vote the amount of such series of Preferred Stock
represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all
reasonable actions that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of the Preferred
Stock to the extent it does not receive specific instructions
from the holder of Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the
Depositary Shares and any provision of the Deposit Agreement
may at any time be amended by agreement between the Company and
the Depositary. However, any amendment which materially and
adversely alters the rights of the holders of the Depositary
Shares representing Preferred Stock of any series will not be
effective unless such amendment has been approved by the
holders of at least the amount of the Depositary Shares then
outstanding representing the minimum amount of Preferred
Stock of such series necessary to approve any amendment that
would materially and adversely affect the rights of the
holders of the Preferred Stock of such series. Every holder of
an outstanding Depositary Receipt at the time any such
amendment becomes effective, or any transferee of such holder,
shall be deemed, by continuing to hold such Depositary Receipt,
or by reason of the acquisition thereof, to consent and agree
to such amendment and to be bound by the Deposit Agreement as
amended thereby. The Deposit Agreement automatically
terminates if (i) all outstanding Depositary Shares have been
redeemed; or (ii) each share of Preferred Stock has been
converted into other preferred stock or common stock or has
been exchanged for debt securities; or (iii) there has been a
final distribution in respect of the Preferred Stock in
connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the
holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay all charges of
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the Depositary in connection with the initial deposit of the
relevant series of Preferred Stock and any redemption
of such Preferred Stock. Holders of Depositary
Receipts will pay other transfer and other taxes and
governmental charges and such other charges or expenses as are
expressly provided in the Deposit Agreement to be for their
accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering
to the Company notice of its election to do so, and the Company
may at any time remove the Depositary, any such resignation or
removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such
successor Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least
$50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and
communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the
holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable
if it is prevented or delayed by law or any circumstances
beyond its control in performing its obligations under the
Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they
will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares, Depositary
Receipts or shares of Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice of
counsel or accountants, or upon information provided by holders
of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
The Company is authorized to issue 60,000,000 shares
of Common Stock. As of November 30, 1993, 29,452,444 shares of
Common Stock were issued and outstanding, and an aggregate of
1,282,010 shares of Common Stock were reserved for issuance
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<PAGE> 37
under the Company's incentive stock plans. The Common Stock is
listed on the New York Stock Exchange and the Pacific Stock
Exchange.
The holders of Common Stock are entitled to receive
such dividends as may be declared from time to time by the
Board of Directors out of funds legally available therefor. The
holders of Common Stock are entitled to one vote per share on
all matters submitted to a vote of shareholders and do not have
cumulative voting rights. Holders of Common Stock are entitled
to receive, upon any liquidation of the Company, all remaining
assets available for distribution to shareholders after
satisfaction of the Company's liabilities and the
preferential rights of any preferred stock that may then be
issued and outstanding. The outstanding shares of Common
Stock are, and the shares offered hereby will be, fully paid
and nonassessable. The holders of Common Stock have no
preemptive, conversion or redemption rights. The registrar
and transfer agent for the Common Stock is The Bank of New York.
DESCRIPTION OF PREFERRED SHARE PURCHASE RIGHTS
In 1988, the Company's Board of Directors authorized
the distribution of one Preferred Share Purchase Right (a
"Right") for each outstanding share of Common Stock. Each
Right entitles the holder thereof to buy one-half of one
one-hundredth of a share of Series B Junior Participating Cumulative
Preferred Stock at a price of $70.
As distributed, the Rights trade together with the
Common Stock. They may be exercised or traded separately only
after the earlier to occur of: (i) 10 days following a public
announcement that a person or group of persons has obtained the
right to acquire 10% or more of the outstanding Common Stock
(20% in the case of certain institutional investors), or (ii)
10 business days (or such later date as may be determined by
action of the Board of Directors) following the commencement or
announcement of an intent to make a tender offer or exchange
offer which would result in beneficial ownership by a person or
group of persons of 10% or more of the Company's outstanding
Common Stock. If the acquiring person or group of persons
acquires 10% or more of the Common Stock, each Right (other
than those held by the acquiror) will entitle its holder to
purchase, at the Right's exercise price, shares of Common
Stock having a market value of twice the Right's exercise
price. Additionally, if the Company is acquired in a merger
or other business combination, each Right (other than those
held by the surviving or acquiring company) will entitle its
holder to purchase, at the Right's exercise price, shares of
the acquiring
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<PAGE> 38
company's common stock (or Common Stock of the Company if it is the
surviving corporation) having a market value of twice the
Right's exercise price.
Rights may be redeemed at the option of the Board of
Directors for $0.005 per Right at any time before a person or
group of persons acquires 10% or more of the Company's Common
Stock. The Board may amend the Rights at any time without
shareholder approval. The Rights will expire by their terms
on November 14, 1998.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to
purchase Debt Securities ("Debt Warrants"), as well as other
types of Warrants to purchase Securities. Warrants may be
issued independently or together with any Securities and may
be attached to or separate from such securities. The Warrants
are to be issued under warrant agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank
or trust company, as warrant agent (the "Warrant Agent"), all
as shall be set forth in the Prospectus Supplement relating to
Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe
the terms of Debt Warrants offered thereby, the Warrant
Agreement relating to such Debt Warrants and the debt warrant
certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the
aggregate number of such Debt Warrants; (3) the price or prices
at which such Debt Warrants will be issued; (4) the currency or
currencies, including composite currencies or currency units,
in which the price of such Debt Warrants may be payable; (5)
the designation, aggregate principal amount and terms of the
Debt Securities purchasable upon exercise of such Debt
Warrants, and the procedures and conditions relating to the
exercise of such Debt Warrants; (6) the designation and terms
of any related Debt Securities with which such Debt Warrants
are issued, and the number of such Debt Warrants issued with
each such Debt Security; (7) the currency or currencies,
including composite currencies or currency units, in which the
principal of or any premium or interest on the Debt Securities
purchasable upon exercise of such Debt Warrants will be
payable; (8) the date, if any, on and after which such Debt
Warrants and the related Debt Securities will be separately
transferable; (9) the principal amount of Debt Securities
purchasable upon exercise of
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each Debt Warrant, and the price at which and the currency or
currencies, including composite currencies or currency units, in which
such principal amount of Debt Securities may be purchased upon such
exercise; (10) the date on which the right to exercise such Debt
Warrants will commence, and the date on which such right will expire;
(11) the maximum or minimum number of such Debt Warrants which may be
exercised at any time; (12) a discussion of any material federal
income tax considerations; and (13) any other terms of such Debt
Warrants and terms, procedures and limitations relating to the
exercise of such Debt Warrants.
Debt warrant certificates will be exchangeable for
new debt warrant certificates of different denominations, and
Debt Warrants may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the
Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the
rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payment of principal of or
any premium or interest on the Debt Securities purchasable
upon such exercise.
OTHER WARRANTS
The Company may issue other Warrants. The applicable
Prospectus Supplement will describe the following terms of any
such other Warrants in respect of which this Prospectus is
being delivered: (1) the title of such Warrants; (2) the
Securities (which may include Preferred Stock or Common Stock)
for which such Warrants are exercisable; (3) the price or
prices at which such Warrants will be issued; (4) the currency
or currencies, including composite currencies or currency
units, in which the price of such Warrants may be payable; (5)
if applicable, the designation and terms of the Preferred
Stock or Common Stock with which such Warrants are issued, and
the number of such Warrants issued with each such share of
Preferred Stock or Common Stock; (6) if applicable, the date on
and after which such Warrants and the related Preferred Stock
or Common Stock will be separately transferable; (7) if
applicable, a discussion of any material federal income tax
considerations; and (8) any other terms of such Warrants,
including terms, procedures and limitations relating to the
exchange and exercise of such Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash
such principal amount of Debt Securities or number of shares of
Preferred Stock or Common Stock at such exercise price
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<PAGE> 40
as shall in each case be set forth in, or be determinable as
set forth in, the Prospectus Supplement relating to the
Warrants offered thereby. Warrants may be exercised at any
time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants
offered thereby. After the close of business on the expiration
date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the
Prospectus Supplement relating to the Warrants offered
thereby. Upon receipt of payment and the warrant certificate
properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in
the Prospectus Supplement, the Company will, as soon as
practicable, forward the Securities purchasable upon such
exercise. If less than all of the Warrants represented by such
warrants certificate are exercised, a new warrant certificate
will be issued for the remaining Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered
hereby in four ways: (i) directly to purchasers, (ii) through
agents, (iii) through underwriters, and (iv) through dealers.
If one or more underwriters are used in the sale of
Securities, the Company will execute an underwriting agreement
with such underwriters setting forth, among other things,
certain terms of the sale and offering.
The distribution of the Securities may be effected
from time to time in one or more transactions at a fixed price
or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Prospectus Supplement will
describe the method of distribution of the Securities.
In connection with the sale of Securities,
underwriters and agents may receive compensation both from the
Company, in the form of discounts, concessions or commissions,
and from purchasers of Securities for whom they may act as
agents. The underwriters, agents and dealers that participate
in the distribution of Securities may be deemed to be
"underwriters" within the meaning of, and any discounts or
commissions received by them and any profit on the resale of
Securities by them may be deemed to be underwriting discounts
and commissions under, the Securities Act. Any such
underwriters or agents will be identified and any such
compensation will be described in the Prospectus Supplement.
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Under agreements which may be entered into by the
Company, underwriters, agents and dealers who participate in
the distribution of Securities may be entitled to
indemnification by the Company against or in respect of
certain liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments
required to be made in respect thereof.
Certain of the underwriters, dealers and agents and
their associates may engage in transactions with, and perform
services for, the Company in the ordinary course of business.
If so indicated in an applicable Prospectus
Supplement, the Company will authorize underwriters or other
persons acting as agents to solicit offers by certain
institutions to purchase Debt Securities or Preferred Stock
from the Company at the public offering price set forth in
such Prospectus Supplement pursuant to Delayed Delivery
Contracts ("Contracts") providing for payment and delivery on
the date or dates stated in the applicable Prospectus
Supplement. Each Contract will be for an amount stated in the
applicable Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial
and savings banks, insurance companies, pension funds,
investment companies, educational and charitable
institutions, and other institutions but will in all cases be
subject to the approval of the Company. Contracts will not be
subject to any conditions except that (i) the purchase by an
institution of the Securities covered by its Contracts will not
at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is
subject and (ii) if the Securities are being sold to
underwriters, the Company will have sold to such underwriters
such amount specified in the applicable Prospectus Supplement.
Agents and underwriters will have no responsibility in respect
of the delivery or performance of Contracts. A commission
indicated in the applicable Prospectus Supplement will be
paid to underwriters and agents soliciting purchases of
Securities pursuant to Contracts accepted by the Company.
LEGAL OPINIONS
Unless otherwise indicated in the applicable
Prospectus Supplement, George N. Bashara, Jr., General Counsel
of the Company, is passing upon the validity of the
Securities. On behalf of any underwriters, agents or dealers,
Sullivan & Cromwell, New York, New York, is passing upon
certain legal matters in connection with the Securities. In
rendering its opinion, Sullivan & Cromwell will rely as to
matters of Michigan law on the opinion of George N. Bashara, Jr.
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INDEPENDENT AUDITORS
The consolidated financial statements and schedules of
Federal-Mogul Corporation and subsidiaries at December 31, 1992
and 1991, and for each of the three years in the period ended December
31, 1992, appearing in Federal-Mogul Corporation's Annual
Report (Form 10-K) as amended by its Form 8 dated April 19, 1993,
and the combined financial statements of TRW Automotive
Aftermarket Group at December 31, 1991 and 1990, and for each
of the years then ended, appearing in Federal-Mogul
Corporation's Form 8 dated January 4, 1993 to its Form 8-K
dated October 20, 1992, have been audited by Ernst & Young,
independent auditors, as set forth in their reports thereon
included therein and incorporated herein by reference. Such
consolidated and combined financial statements are
incorporated herein by reference in reliance upon such reports
given upon the authority of such firm as experts in accounting
and auditing.
The combined statements of assets and liabilities of
Sealed Power Corporation and Sealed Power Corporation of
Canada, Ltd. at December 31, 1992 and 1991 and the related
combined statements of revenues and expenses and changes in
equity and cash flows for each of the years then ended,
appearing in Federal-Mogul Corporation's Form 8-K dated
November 10, 1993, as amended on Form 8-K/A, dated December 3, 1993
and incorporated herein by reference, have been audited by
Arthur Andersen & Co., independent public accountants, as
indicated in their report with respect thereto, and is included
herein in reliance upon the authority of said firm as experts
in giving said reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of the
expenses, other than underwriting discounts and commissions,
incurred and to be incurred by the Company in connection with
the issuance and distribution of the Securities registered
pursuant to this registration statement is as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee... $103,449.00
Printing and engraving expenses................. 50,000.00
Accounting fees and expenses.................... 50,000.00
Legal fees and expenses......................... 100,000.00
Listing fees.................................... 10,000.00
Fees and expenses of trustee.................... 20,000.00
Rating agencies' fees........................... 120,000.00
Blue sky fees and expenses and legal fees....... 15,000.00
Miscellaneous................................... 31,551.00
-----------
Total...................................... $500,000.00
-----------
-----------
</TABLE>
ITEM 15. MICHIGAN BUSINESS CORPORATION ACT
Sections 561 through 569 of the Michigan Business
Corporation Act (the "Act"), and Article XI of the Company's
Bylaws relate to the indemnification of the Company's directors
and officers, among others, in a variety of circumstances
against liabilities arising in connection with the performance
of their duties.
The Act permits indemnification of directors and
officers acting in good faith and in a manner they reasonably
believe to be in or not opposed to the best interests of the
Company or its shareholders (and, with respect to a criminal
proceeding, if they have no reasonable cause to believe their
conduct to be unlawful) against (i) expenses (including
attorney's fees), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred in connection
with any threatened, pending, or completed action, suit, or
proceeding (other than an action by or in the right of the
Company) arising out of a position with the Company (or with
some other entity at the Company's request) and (ii) expenses
(including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred in connection with a
threatened, pending, or completed action or suit by or in the
right of the Company, unless the director or officer is found
liable to the Company and an appropriate court does not
determine that he or she is nevertheless fairly and reasonably
entitled to indemnification.
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The Act requires indemnification for expenses to the extent
that a director or officer is successful on the merits in
defending against any such action, suit or proceeding, and
otherwise requires in general that the indemnification
provided for in (i) and (ii) above be made only on a
determination by (a) a majority vote of a quorum of the Board
of Directors who were not parties or threatened to be made
parties to the action, suit or proceeding, (b) if a quorum
cannot be obtained, by a majority vote of a committee duly
designated by the Board and consisting solely of two or more
directors not at the time parties or threatened to be made
parties to the action, suit or proceeding, (c) by independent
legal counsel, (d) by all independent directors who are not
parties or threatened to be made parties to the action, suit or
proceeding or (e) by the shareholders (but shares held by
directors or officers who are parties or are threatened to be
made parties may not be voted). In certain circumstances, the
Act further permits advances to cover such expenses before a
final determination that indemnification is permissible, upon
receipt of a written affirmation by the director or officer of
their good-faith belief that they have met the applicable
standard of conduct set forth in the Act, receipt of a written
undertaking by or on behalf of the director or officer to repay
such amounts unless it shall ultimately be determined that
they are entitled to indemnification and a determination that
the facts then known to those making the advance would not
preclude indemnification.
Indemnification under the Act is not exclusive of
other rights to indemnification to which a person may be
entitled under the Company's Articles of Incorporation,
Bylaws, or a contractual agreement. The Act permits the
Company to purchase insurance on behalf of its directors and
officers against liabilities arising out of their positions
with the Company whether or not such liabilities would be
within the foregoing indemnification provisions.
BYLAWS
Under the Company's Bylaws, the Company is required
to indemnify any person who was or is a party or is threatened
to be made a party to or called as a witness in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the Company, a "derivative action") and
any appeal thereof by reason of the fact that such person is,
was or agreed to become a director or officer of the Company,
against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such
action, suit or proceeding if such person was successful in
defending
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<PAGE> 45
such action, suit or proceeding, or otherwise if such person
acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
Company or its shareholders, and, with respect to any criminal
action or proceeding had no reasonable cause to believe was
unlawful. A similar standard of care is applicable in the case
of derivative actions, except the indemnification extends only
to expenses (including actual and reasonable attorneys' fees)
and amounts paid in settlement incurred in connection with such
an action and, where the person is found to be liable to the
Company, only if and to the extent that the court in which such
action was brought determines that such person is fairly and
reasonably entitled to such indemnity and then only for
expenses which the court considers proper.
The Company's Bylaws provide that the Company shall
pay for the expenses incurred by an indemnified director or
officer in defending the proceedings specified above, in
advance of their final disposition, provided that if required
by the Act, the person furnishes the Company with an
undertaking to reimburse the Company if it is ultimately
determined that such person is not entitled to indemnification.
The Company shall provide indemnification to any person who is
or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, or other
enterprise to the same degree as the foregoing indemnification
of directors and officers. In addition, the Company may
purchase and maintain insurance on behalf of any person who is
or was a director or officer of the Company (or is serving or
was serving at the request of the Company in a position and at
an entity listed in the preceding sentence) against any
liability asserted against and incurred by such person in such
capacity, or arising out of the person's status as such whether
or not the Company would have the power or the obligation to
indemnify such person against such liability under the
provisions of the Company's Bylaws.
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ITEM 16. EXHIBITS
**1-1 Form of Underwriting Agreement relating to preferred stock.
**1-2 Form of Underwriting Agreement relating to common stock.
**1-3 Form of Underwriting Agreement relating to debt
securities.
*4-1 The Company's Second Restated Articles of Incorporation,
as amended (filed as Exhibit 3.1 to Company's Form 10-Q
for the quarter ended September 30, 1992).
*4-2 The Company's Bylaws, as amended (filed as Exhibit 3.2
to the Company's Form 10-K for the year ended December 31,
1991).
*4-3 Rights Agreement ("Rights Agreement") between the
Company and National Bank of Detroit as Rights Agent
(filed as Exhibit 1 to the Company's Form 8-A
Registration Statement dated November 7, 1988).
*4-4 Amendments dated July 25, 1990, to Rights Agreement
(filed as Exhibit 4.5 to the 1990 Second Quarter 10-Q).
*4-5 Amendment Number Two dated as of September 23, 1992
to Rights Agreement (filed as Exhibit 4-4 to the 1992
10-K).
*4-6 Second Restated and Amended Revolving Credit Agreement
dated October 19, 1993, among the Company, various banks,
and Chemical Bank, as agent.
**4-7 Form of Senior Indenture.
**4-8 Form of Subordinated Indenture.
*4-9 Form of Deposit Agreement, including form of Depositary
Receipt for Depositary Shares.
*4-10 Agreement of Purchase and Sale dated as of September 15,
1993 between Federal-Mogul Corporation and SPX
Corporation and certain of its subsidiaries (filed as
Exhibit 2.1 to a Form 8K dated November 10, 1993).
**5-1 Opinion of George N. Bashara, Jr.
**5-2 Opinion of Wachtell, Lipton, Rosen & Katz.
*12-1 Computation of Ratio of Earnings to Fixed Charges.
*12-2 Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
II-4
<PAGE> 47
*23-1 Consent of Ernst & Young, independent auditors.
*23-2 Consent of Arthur Andersen & Co., independent public
accountants.
**23-3 Consent of George N. Bashara, Jr. (included in
Exhibit 5-1).
23-4 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibit 5-2).
*24-1 Power of Attorney is included on page II-9
**25-1 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Trustee for
Senior Indenture.
**25-2 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 or Trustee for
Subordinated Indenture.
-----------------------
* Previously filed.
** Filed herewith.
II-5
<PAGE> 48
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or
sales are being made of the securities registered hereby,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any fact or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
this registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in the
registration statement;
provided, however, that the undertakings set forth in the
paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration
statement.
(b) that, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) to remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(d) that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's
annual
II-6
<PAGE> 49
report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(e) that, insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of the
registrant pursuant to the provisions described under
Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy
as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the
registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is
against public policy as expressed in such Act and will be
governed by the final adjudication of such issue.
(f) that, for purposes of determining any liability
under the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(g) that, for purposes of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) to file an application for the purposes of
determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act
in
II-7
<PAGE> 50
accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of such Act.
II-8
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused
this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Southfield, Michigan on January 10, 1994.
FEDERAL-MOGUL CORPORATION
By: /s/ Martin E. Welch III
-----------------------
Martin E. Welch III
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the Registration Statement has been signed
below by the following persons of the Registrants in the capacities
and dates indicated.
II-9
<PAGE> 52
NAME TITLE DATE
---- ----- ----
*
----------------------- Chairman of the Board January __, 1994
Dennis J. Gormley and Chief Executive
Officer and Director
(Principal Executive
Officer)
*
----------------------- Senior Vice President January __, 1994
Martin E. Welch III and Chief Financial
Officer (Principal
Financial Officer)
*
----------------------- Vice President and January __, 1994
James B. Carano Controller (Principal
Accounting Officer)
*
----------------------- Director January __, 1994
John J. Fannon
*
----------------------- Director January __, 1994
Roderick M. Hills
*
----------------------- Director January __, 1994
Walter J. McCarthy, Jr.
*
----------------------- Director January __, 1994
Robert S. Miller, Jr.
*
----------------------- Director January __, 1994
John C. Pope
II-10
<PAGE> 53
*
----------------------- Director January __, 1994
Thomas F. Russell
*
----------------------- Director January __, 1994
Dr. Hugo Michael Sekyra
*By: /s/ STEPHANIE G. HEIM
-----------------
Attorney-in-fact
II-11
<PAGE> 54
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
Item 16. Exhibits
**1-1 Form of Underwriting Agreement relating to preferred stock.
**1-2 Form of Underwriting Agreement relating to common stock.
**1-3 Form of Underwriting Agreement relating to debt
securities.
*4-1 The Company's Second Restated Articles of Incorporation,
as amended (filed as Exhibit 3.1 to Company's Form 10-Q
for the quarter ended September 30, 1992).
*4-2 The Company's Bylaws, as amended (filed as Exhibit 3.2
to the Company's Form 10-K for the year ended December 31,
1991).
*4-3 Rights Agreement ("Rights Agreement") between the
Company and National Bank of Detroit as Rights Agent
(filed as Exhibit 1 to the Company's Form 8-A
Registration Statement dated November 7, 1988).
*4-4 Amendments dated July 25, 1990, to Rights Agreement
(filed as Exhibit 4.5 to the 1990 Second Quarter 10-Q).
*4-5 Amendment Number Two dated as of September 23, 1992
to Rights Agreement (filed as Exhibit 4-4 to the 1992
10-K).
*4-6 Second Restated and Amended Revolving Credit Agreement
dated October 19, 1993, among the Company, various banks,
and Chemical Bank, as agent.
**4-7 Form of Senior Indenture.
**4-8 Form of Subordinated Indenture.
*4-9 Form of Deposit Agreement, including form of Depositary
Receipt for Depositary Shares.
*4-10 Agreement of Purchase and Sale dated as of September 15,
1993 between Federal-Mogul Corporation and SPX
Corporation and certain of its subsidiaries (filed as
Exhibit 2.1 to a Form 8K dated November 10, 1993).
**5-1 Opinion of George N. Bashara, Jr.
**5-2 Opinion of Wachtell, Lipton, Rosen & Katz.
*12-1 Computation of Ratio of Earnings to Fixed Charges.
*12-2 Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
*23-1 Consent of Ernst & Young, independent auditors.
*23-2 Consent of Arthur Andersen & Co., independent public
accountants.
**23-3 Consent of George N. Bashara, Jr. (included in
Exhibit 5-1).
23-4 Consent of Wachtell, Lipton, Rosen & Katz (included
in Exhibit 5-2).
*24-1 Power of Attorney is included on page II-9
**25-1 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Trustee for
Senior Indenture.
**25-2 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 or Trustee for
Subordinated Indenture.
-----------------------
* Previously filed.
** Filed herewith.
<PAGE> 1
EXHIBIT 1.1
FEDERAL-MOGUL CORPORATION
Preferred Stock
UNDERWRITING AGREEMENT
1. Introductory. Federal-Mogul Corporation, a Michigan
corporation ("Company"), proposes to issue and sell from time to time shares of
its preferred stock (the "Preferred Stock Shares") or Depositary Shares (as
defined below) (the Preferred Stock Shares and the Depositary Shares each
referred to herein as the "Registered Securities") registered under the
registration statement referred to in Section 2(a). If the Prospectus (as
defined in Section 2 hereof) so provides, the Preferred Stock Shares shall be
deposited by the Company against delivery of receipts (the "Depositary
Receipts") to be issued by the bank or trust company named in the Prospectus as
the depositary (such bank or trust company being referred to herein as the
"Depositary") under a Deposit Agreement, to be dated as of the date specified
in the Prospectus (the "Deposit Agreement"), among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued thereunder.
Such Depositary Receipts will evidence Depositary Shares (the "Depositary
Shares") and each Depositary Share will represent the fractional interest in a
Preferred Stock Share specified in the Prospectus. If the Preferred Stock
Shares are not to be represented by Depositary Receipts, then all references
herein to Depositary Receipts, Depositary Shares and to any agreements,
instruments or persons related thereto shall be disregarded and all opinions
(or portions thereof) and other documents relating to the foregoing shall be
deemed to be deleted from this Agreement for purposes of the related Terms
Agreement. The Registered Securities may be issued in one or more series,
which series may vary as to dividend rates, redemption provisions, selling
prices and other terms, with all such terms for any particular series of the
Registered Securities being determined at the time of sale. Particular series
of the Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Firm Securities". The firm or firms which
agree to purchase the Firm Securities are hereinafter referred to as the
"Underwriters" of such Firm Securities, and the
<PAGE> 2
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(d) and 6 and the second
sentence of Section 3), shall mean the Underwriters. If specified in such
Terms Agreement, the Company may grant to the Underwriters the right to
purchase at the election of the Representatives an additional number of shares
specified in such Terms Agreement as provided in Section 3 hereof (the
"Optional Securities"). The Firm Securities and the Optional Securities, if
any, which the Underwriters elect to purchase pursuant to Section 3 hereof, are
herein collectively referred to as the "Securities".
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33-51265), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Securities and the terms of offering
thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933 ("Act"), including all material incorporated by reference
therein, is hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission ("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 each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents will
include any untrue
-2-
<PAGE> 3
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, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of
the Underwriters to purchase the Firm Securities will be evidenced by an
exchange of telegraphic or other written communications ("Terms Agreement") at
the time the Company determines to sell the Firm Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the number of Firm
Securities to be purchased by each Underwriter, the purchase price to be paid
by the Underwriters and the terms of the Securities not already specified,
including, but not limited to, dividend rate, any redemption provisions and any
sinking fund requirements and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery of
the Firm Securities and payment (such time and date, or such other time not
later than seven full business days thereafter as the Representatives and the
Company agree as the time for payment and delivery, being herein and in the
Terms Agreement referred to as the "First Closing Date"), the place of delivery
and payment and any details of the terms of offering that should be reflected
in the prospectus supplement relating to the offering of the Firm Securities.
In addition, the Company may specify in the Terms Agreement applicable to any
Firm Securities that the Company grants to the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Optional Securities set forth in the Terms Agreement. Upon written notice from
the Representatives given to the Company not more than 30 days subsequent to
the date of the initial public offering of the Securities, the Underwriters may
purchase all or less than all of the Optional Securities, which shall be at the
purchase price per Security to be paid for the Firm Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may
be purchased by the Underwriters only for the purpose of
-3-
<PAGE> 4
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
surrendered and terminated at any time upon notice by the Representatives to
the Company.
The time for the delivery of and payment for the Optional
Securities, being herein referred to as the "Second Closing Date", which may be
the First Closing Date (the First Closing Date and the Second Closing Date, if
any, being sometimes referred to as a "Closing Date"), shall be determined by
the Representatives but shall be not earlier than two nor later than seven
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver the Optional Securities to the
Representatives for the accounts of the several Underwriters against payment of
the purchase price therefor by certified or official bank check or checks in
the funds specified in the Terms Agreement with respect to payment for the Firm
Securities and will be made available for checking and packaging at a
reasonable time in advance of the Second Closing Date.
The obligations of the Underwriters to purchase the Securities
will be several and not joint. It is understood that the Underwriters propose
to offer the Securities for sale as set forth in the Prospectus. The
certificates for the Securities delivered to the Underwriters on the Closing
Date will be in definitive form, in such denominations and registered in such
names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
number of shares of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance
-4-
<PAGE> 5
of Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the
Securities to be purchased by the several Underwriters and the aggregate number
of shares of Securities to be purchased by each Underwriter will be reduced pro
rata in proportion to the number of shares of Securities set forth opposite
each Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the number of shares
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to Sullivan & Cromwell,
counsel for the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with
each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representatives, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its
reasonable best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, 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
-5-
<PAGE> 6
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, the Company, at its own
expense, promptly will 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. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the later of
(i) the effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
and so long as delivery of a Prospectus by any Underwriter or dealer
may be required under the Act, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as are requested. The Company will pay the
expenses of printing and distributing all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of 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.
(g) During the period of 10 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to
-6-
<PAGE> 7
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto for any fees charged by investment rating
agencies for the rating of the Securities, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the
Registered Securities and for any expenses incurred in distributing
the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the
Terms Agreement and ending ___ days after the Closing Date, without
the prior written consent of the Representatives, the Company will not
offer, sell, contract to sell or otherwise dispose of any securities
of the Company which are substantially similar to the Securities or
securities convertible into, or exercisable or exchangeable for
securities of the Company which are substantially similar to the
Securities except issuances upon the conversion of securities or the
exercise of warrants outstanding on the date hereof.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities on the Second
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
-7-
<PAGE> 8
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young, confirming that they are
independent auditors within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the consolidated financial
statements and any supplementary financial information and
schedules audited by them and included in the Registration
Statement or the Prospectus, comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations, and the
audited financial statements of SPR included in the
Registration Statement or Prospectus comply in all material
respects with Article 3-05 of Regulation S-X;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to any unaudited financial statements and
read unaudited financial data and the unaudited pro forma
financial data included in such Prospectus and the unaudited
financial statements from which such financial data were
obtained;
(iii) on the basis of the procedures and reading referred
to in (ii) above, 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 and inquiries of
officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited pro forma combined
condensed statements of earnings and pro forma
combined condensed balance sheets included in the
Prospectus do not comply as to form in all material
respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission and the
-8-
<PAGE> 9
related published Rules and Regulations or the pro
forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(B) the unaudited financial statements of
the Company included in such Prospectus do not comply
in form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made for them to be in
conformity with generally accepted accounting
principles;
(C) as of a specified date not more than
five days prior to the date of the Terms Agreement,
there was any change in the capital stock or any
increase in short-term debt and current maturities of
long-term debt or long-term debt of the Company and
its consolidated subsidiaries or there was any
decrease in consolidated net current assets or total
shareholders' equity, as compared with amounts shown
on the latest balance sheet of the Company included
in the Prospectus; or
(D) for the period from the date of the
latest statement of earnings of the Company included
in the Prospectus to the specified date referred to
in clause (C) there were any decreases, as compared
with the corresponding period of the previous year in
consolidated net sales or in the total or per share
amounts of consolidated earnings from continuing
operations or net earnings;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) with respect to the unaudited combined condensed
balance sheet of TRW Automotive Aftermarket Group ("AAB") at
June 30, 1992 and the unaudited combined condensed statements
of earnings for the six months ended June 30, 1992 and 1991,
and the unaudited combined condensed statement of cash flows
for the six month period ended June 30, 1992, included in the
Prospectus
-9-
<PAGE> 10
they have read such unaudited combined condensed financial
statements and
(A) agreed the amounts contained therein
with the Company's accounting records as of June 30,
1992 and 1991, and for the six month periods then
ended; and
(B) on September 14, 1992 inquired of
certain officials of AAB who have responsibility for
financial and accounting matters whether such
unaudited combined condensed financial statements (i)
are in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited combined
financial statements of AAB included in the
Prospectus, and (ii) comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations and that those officials stated
that such unaudited combined condensed financial
statements (i) are in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements, and (ii) comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations, except that the unaudited
combined condensed financial statements of AAB do not
include an unaudited combined condensed statement of
cash flows for the six months ended June 30, 1991 as
required by generally accepted accounting principles;
(v) with respect to the unaudited combined condensed
statement of earnings of AAB for the period from January 1,
1992 to October 20, 1992 included in the Prospectus, they have
read such unaudited financial statements and
(A)(i) agreed the underlying unadjusted
amounts to the accounting records of AAB, and (ii)
proved the arithmetic accuracy of the application of
the adjustments made by the Company to the unaudited
financial statement for it to be in conformity with
generally accepted accounting principles on a basis
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<PAGE> 11
substantially consistent with that of the audited
combined financial statements of AAB; and
(B) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters of the Company and who were
responsible for preparation of such unaudited
combined condensed statement of earnings subsequent
to the October 20, 1992 purchase of AAB by the
Company whether, since October 20, 1992, anything has
come to their attention that caused them to believe
that such unaudited combined condensed statement of
earnings (i) requires material modifications to be in
conformity with generally accepted accounting
principles, and (ii) complies as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations and that those officials stated
that based on their knowledge such unaudited combined
condensed statement of earnings (i) does not require
material modifications to be in conformity with
generally accepted accounting principles, and (ii)
complies as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations; and
(vi) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus
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<PAGE> 12
shall be deemed included in such Prospectus for purposes of this
subsection. With respect to the Company's compliance with Article
3-05 of Regulation S-X, Ernst & Young may rely on the accuracy of the
audited financial statements of SPR included in such Prospectus.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Arthur Andersen & Co., confirming that they are
independent auditors within the meaning of the Act and the applicable
and published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements
audited by them and included in the Registration Statement and
the Prospectus, comply in form in all material respects with
the applicable accounting requirements of the Act and the
related published Rules and Regulations (except that they need
not opine as to such financial statements' compliance with
Article 3-05 of Regulation S-X);
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to the unaudited financial statements of
Sealed Power Corporation and Sealed Power Corporation of
Canada, Ltd. (collectively "SPR") included in such Prospectus,
and read the unaudited financial data of SPR included in such
Prospectus and the unaudited financial statements from which
such financial information was obtained; and
(iii) on the basis of the procedures and reading referred
to in (ii) above, inspection of the minute books of SPR since
the date of the latest audited financial statements of SPR
included in the Prospectus and inquiries of officials of SPR
who had responsibility for financial and accounting matters
and other specified procedures, nothing came to their
attention that caused them to believe that the unaudited
combined condensed statement of assets and liabilities of SPR
at September 30, 1993 and the unaudited combined condensed
statements of revenues and expenses for the nine months ended
September 30,
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<PAGE> 13
1993, and 1992, and the unaudited combined condensed statement
of cash flows for the nine months ended September 30, 1993 do
not comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications
should be made for them to be in conformity with generally
accepted accounting principles;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of SPR subject to the internal controls of
SPR's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed
included in such Prospectus for purposes of this subsection. Arthur
Andersen & Co. may note that the audited financial statements of SPR
included in such Prospectus have been prepared for the purpose of
complying with the applicable accounting requirements of the Act and
the related published Rules and Regulations for filing with the
Commission pursuant to the Agreement of Purchase and sale between SPX
Corporation ("SPX") and Federal-Mogul Corporation, dated as of
September 15, 1993, and that such financial statements are not
intended to be a complete presentation of SPR's assets, liabilities,
equity, revenues, expenses and cash flows. In addition, they may note
that SPR's operations reflected in the financial statements of SPR
included in such Prospectus represent SPX's operations that marketed
and distributed replacement engine and under vehicle parts in the
United States and Canada, and that the operating results as presented
in such financial statements do not include any costs associated with
financing such operations or charges for certain administrative and
management functions provided centrally by SPX and
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<PAGE> 14
that, as a result, such financial statements may not necessarily
reflect the combined income that would have resulted if SPR's
operations had been conducted on an independent basis.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(d) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment
of a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities or the Registered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by
either Standard & Poor's Corporation or Moody's Investors Services,
Inc., or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company for possible downgrading; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by Federal or New York authorities; or (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the
Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of George N. Bashara,
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<PAGE> 15
Jr., General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of
the State of Michigan, with corporate power and authority to
own its properties and conduct its business as described in
the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases substantial properties
or in which the conduct of its business requires such
qualification and in which the consequences of a failure to so
qualify would have a material adverse effect on the properties
or business of the Company and its subsidiaries taken as a
whole;
(ii) The Preferred Stock Shares delivered on
such Closing Date have been duly authorized; the Preferred
Stock Shares other than any Contract Securities have been
validly issued and are fully paid and nonassessable; any
Preferred Stock Shares to be sold pursuant to Delayed Delivery
Contracts, when issued, delivered and sold pursuant to such
Delayed Delivery Contracts, will be validly issued, fully paid
and nonassessable; and the Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued, delivered and sold, will conform, to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the
Securities;
(iii) If applicable, the shares of common stock,
without par value ("Common Stock"), of the Company, initially
issuable upon conversion or exchange of the Securities have
been duly authorized and reserved for issuance upon such
conversion or exchange and, when issued upon such conversion
or exchange, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the shares of Common Stock
into which the Securities are convertible or exchangeable;
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<PAGE> 16
(iv) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
(v) No consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Securities by the Company, except such as have been
obtained and made under the Act and such as may be required
under state securities laws;
(vi) The execution, delivery and performance of
the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance
and sale of the Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of
any of the terms and provisions, of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by
the Terms Agreement (including the provisions of this
Agreement);
(vii) The Registration Statement has become
effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the
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<PAGE> 17
date specified therein, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
registration statement relating to the Registered Securities,
as of its effective date, the Registration Statement and the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of their respective dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; such
counsel has no reason to believe that such registration
statement, as of its effective date, the Registration
Statement or any amendments or supplements thereto, as of its
date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendments or
supplements thereto, as of their respective dates, contained
any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statement or the
Prospectus;
(viii) The Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company; and
(ix) The Deposit Agreement has been duly
authorized, executed and delivered by the Company,
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<PAGE> 18
and constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; the Depositary Receipts have been duly issued in
accordance with the Deposit Agreement, and the persons in
whose names the Depositary Receipts are registered will be
entitled to the rights specified in the Depositary Receipts
and in the Deposit Agreement.
If applicable, such counsel shall also state that such counsel
has been advised by the New York Stock Exchange that the
Securities have been duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Wachtell, Lipton, Rosen & Katz, counsel for the
Company, to the effect that:
(i) The Securities other than any Contract Securities
conform, and any Contract Securities, when issued, delivered
and sold pursuant to Delayed Delivery Contracts, will conform
to the description thereof contained in the Prospectus;
(ii) Under the laws of the State of New York and
federal law, no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Securities by the Company, except such as have been
obtained and made under the Act and such as may be required
under state securities laws;
(iii) To the knowledge of such counsel, under the laws
of the State of New York and federal law, the execution,
delivery and performance of the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not
result in a breach or violation of any of
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<PAGE> 19
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Company or any of its properties, or any agreement or
instrument to which the Company is a party, or by which the
Company is bound, or to which any of the properties of the
Company is subject, or the charter or by-laws of the Company,
and the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(iv) To the extent applicable, such counsel has
reviewed the information in the Prospectus under the caption
"Certain Federal Income Tax Considerations" and to the extent
they constitute matters of law or legal conclusion, they are
accurate in all material respects; and
(v) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of
their respective dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, the
Registration Statement, or any amendments or supplements
thereto, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any
amendments or supplements thereto, as of their respective
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in light of the
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<PAGE> 20
circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus;
(vi) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company; and
(vii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the
Depositary Receipts have been duly issued in accordance with
the Deposit Agreement, and the persons in whose names the
Depositary Receipts are registered will be entitled to the
rights specified in the Depositary Receipts and in the Deposit
Agreement.
In rendering such opinion, Wachtell, Lipton, Rosen & Katz may
rely as to all matters governed by Michigan laws upon the
opinion of George N. Bashara, Jr. referred to above (provided
that they shall state that they believe that the Underwriters
are justified in relying upon such opinion).
(g) The Representatives shall have received an opinion from
counsel for the Depositary, dated such Closing Date, to the effect
that the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Depositary Receipts, when issued in accordance with
the Deposit Agreement against the deposit of duly authorized, validly
issued, fully paid and nonassessable Shares, will be validly issued
and the persons in whose names the Depositary Receipts are
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<PAGE> 21
registered will be entitled to the rights specified in the Depositary
Receipts and in the Deposit Agreement.
(h) 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 Securities, the Registration Statement,
the Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, Sullivan & Cromwell may rely as to the
incorporation of the Company and all other matters governed by
Michigan law upon the opinion of George N. Bashara, Jr. referred to
above.
(i) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice- President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operation of
the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representatives shall have received a letter, dated
such Closing Date, of Ernst & Young, which reconfirms the matters set
forth in their letter delivered pursuant to subsection (a) of this
Section and states in effect that:
(i) in their opinion, any financial statements and any
supplementary financial information or schedules audited by
them and included in the Registration Statement or the
Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section comply in form in all
material respects with the applicable
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<PAGE> 22
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to any unaudited financial statements and
read any unaudited financial data and unaudited pro forma
financial data included in such Prospectus and not covered by
their letter delivered pursuant to subsection (a) of this
Section;
(iii) on the basis of the procedures and reading
referred to in (ii) above, 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 and inquiries
of officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited pro forma combined condensed
statements of earnings and pro forma combined condensed
balance sheets, if any, included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and the related published
Rules and Regulations or the pro forma adjustments have not
been properly applied to the historical amounts in compilation
of those statements.
(B) the unaudited financial statements, if any,
included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section do not
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made for them to be in conformity with generally accepted
accounting principles;
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<PAGE> 23
(C) as of a date not more than five days prior to
such Closing Date, there was any change in the capital stock
or any increase in short-term debt and current maturities of
long-term debt or long-term debt of the Company and its
consolidated subsidiaries or there was any decrease in
consolidated net current assets or total shareholders' equity,
as compared with amounts shown on the latest balance sheet of
the Company included in the Prospectus; or
(D) for the period from the date of the latest
statement of earnings of the Company included in the
Prospectus to the specified date referred to in clause (C)
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales, or in
the total or per share amounts of consolidated earnings from
continuing operations or net earnings or in the ratio of
earnings to fixed charges and preferred stock dividends
combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus
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<PAGE> 24
shall be deemed included in the Prospectus for the purposes of this
subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or 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 such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will severally indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon the
omission or the 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
reliance upon and in conformity with written information
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<PAGE> 25
furnished to the Company by such Underwriter through the Representatives, if
any, specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action 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 any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 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, 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
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<PAGE> 26
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 which 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. 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 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 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 which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The 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 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 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer
-26-
<PAGE> 27
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.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities under the
Terms Agreement on either the First or Second Closing Date and the aggregate
number of shares of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of the Securities that the Underwriters are obligated to
purchase on such Closing Date, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are
made by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
the Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of the Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8 (provided that if such default
occurs with respect to the Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of the
several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the numbers of shares of the Securities set forth opposite their names
in the Terms Agreement as a result of Delayed Delivery Contracts entered into
by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
-27-
<PAGE> 28
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement 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, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect and
if any Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain
in effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by them in connection with the offering of the
Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 26555 Northwestern
Highway, Southfield, Michigan 48034, Attention: George N. Bashara, Jr.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York without regard to the choice of law provisions thereof.
-28-
<PAGE> 29
FEDERAL-MOGUL CORPORATION
("Company")
Preferred Stock
TERMS AGREEMENT
____________, 19__
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we -- We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. 33-51265)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title:
[Date of Board Resolution and Committees thereof, if any,
Establishing the Shares: _____________, 19__]
Number of Firm Securities:
Maximum Number of Optional Securities:
Dividend Rate:
Dividend Payment Dates:
Dividend Rights: [Non-]cumulative, [deferred]
Voting Rights:
Redemption Provisions:
Liquidation Rights:
<PAGE> 30
Pre-emptive, Exchange or Conversion Rights:
Sinking Fund:
Terms of Depositary Shares:
[Other Terms]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall
be _____________, 19__. Underwriters' fee is $____ per share of the Contract
Securities.]
Purchase Price: $______ per share plus accrued dividends[, if
any,] from _______________, 19__.
Expected Reoffering Price: $_____ per share, subject to
change by the undersigned.
Closing: ____________A.M. on ________________, 19______, at
_______________, in New York Clearing House (next day) funds.
(1)Underwriter[s']['s] Compensation: $____, payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
[Name[s] and Address[es] of Representative[s]:]
The respective numbers of shares of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
number of shares to be purchased by the Underwriters listed in Schedule A
hereto by the number of shares to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities].
- -----------
(1) Include if purchase is at public offering price and compensation
payable separately.
-2-
<PAGE> 31
The Securities will be made available for checking and
packaging at the office of _________ at least 24 hours prior to the Closing
Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return
wire not later than __P.M. today.]
Very truly yours,
[Lead Underwriter]
[Insert name(s) of other Rep-
resentatives or Underwriters]
[On behalf of--themselves--
itself--and as Representa-
tive[s] of the Several] [As]
Underwriter[s]
[By ______________________________]
By __________________________
[Insert Title]
-3-
<PAGE> 32
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Shares
----------- ------
<S> <C>
- ------------------------------------------ . . . . . . . . . .
---------
Total . . . . . . . . . .
---------
---------
</TABLE>
-4-
<PAGE> 33
To: [Lead Underwriter]
[Insert name(s) of other Representatives or
Underwriter]
As [Representative[s] of the Several] Underwriter[s],
[c/o [address],]
We accept the offer contained in your [letter] [wire], dated
_________, 19__, relating to _______ shares of our [Insert title of
Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 33-51265) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
FEDERAL-MOGUL CORPORATION
By _________________________
[Insert Title]
-5-
<PAGE> 34
ANNEX I
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address
shown below so as to arrive not later than
9:00 A.M., New York time, on
________________ ___, 19__*.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
Federal-Mogul Corporation
c/o [Lead Underwriter]
[ ]
[ ]
Attention: [Insert name of
Corporate Finance Officer]
Gentlemen:
The undersigned hereby agrees to purchase from Federal-Mogul
Corporation, a Michigan corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ______________, 19__ ("Delivery Date"),]
______________ shares
of the Company's [Insert title of securities] ("Securities"), offered by the
Company's Prospectus dated __________, 19__ and a Prospectus Supplement dated
__________, 19__ relating thereto, receipt of copies of which is hereby
acknowledged, at $___ per share plus accrued dividends, if any,--and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
- -----------
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
<PAGE> 35
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the amounts
set forth below:
<TABLE>
<CAPTION>
Number
Delivery Date of Shares
------------- ---------
<S> <C>
--------------------- -----------
--------------------- -----------
</TABLE>
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in New York Clearing House
(next day) funds at the office of ____________________ at ______.M.
on--the--such--Delivery Date upon delivery to the undersigned of the 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.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a
purchase as of the date of this Contract; that the obligation of the Company to
make delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on--the--each--Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at--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 Underwriters the total number of
shares of the Securities less the number of shares thereof covered by this and
other similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to
-2-
<PAGE> 36
which the undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions 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.
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.
-3-
<PAGE> 37
This will become a binding contract between the Company and the undersigned
when such counterpart is so mailed or delivered.
Yours very truly,
_____________________________
(Name of Purchaser)
By _________________________
_________________________
(Title of Signatory)
_________________________
_________________________
(Address of Purchaser)
Accepted, as of the above date.
FEDERAL-MOGUL CORPORATION
By _____________________
[Insert Title]
-4-
<PAGE> 1
EXHIBIT 1.2
FEDERAL-MOGUL CORPORATION
Common Stock
(without par value)
UNDERWRITING AGREEMENT
1. Introductory. Federal-Mogul, a Michigan corporation
("Company"), proposes to issue and sell from time to time shares of its common
stock, without par value ("Common Stock"), registered under the registration
statement referred to in Section 2(a) ("Registered Securities"). Particular
offerings of the Registered Securities will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Firm Securities". The firm or firms which
agree to purchase the Firm Securities are hereinafter referred to as the
"Underwriters" of such Firm Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement
referred to in Section 3 are hereinafter referred to as the "Representatives";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement (other than in Sections 2(b), 5(d) and 6 and the second sentence of
Section 3), shall mean the Underwriters. If specified in such Terms Agreement,
the Company may grant to the Underwriters the right to purchase at the election
of the Representatives an additional number of shares specified in such Terms
Agreement as provided in Section 3 hereof (the "Optional Securities"). The
Firm Securities and the Optional Securities, if any, which the Underwriters
elect to purchase pursuant to Section 3 hereof, are herein collectively
referred to as the "Securities".
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33-51265), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
<PAGE> 2
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of offering of the Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 ("Act"), including
all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus".
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission ("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 each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents will
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, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of
the Underwriters to purchase the Firm Securities will be evidenced by an
exchange of telegraphic or other written communications ("Terms Agreement") at
the time the Company determines to sell the Firm Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the number of Firm
Securities to be purchased by each Underwriter, and the purchase price to be
paid by the Underwriters. The Terms Agreement will also specify the time and
date of delivery of the Firm Securities and payment (such time and date, or
such other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "First Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Firm Securities. In addition, the Company may specify in the
-2-
<PAGE> 3
Terms Agreement applicable to any Firm Securities that the Company grants to
the Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Securities set forth in the Terms
Agreement. Upon written notice from the Representatives given to the Company
not more than 30 days subsequent to the date of the initial public offering of
the Securities, the Underwriters may purchase all or less than all of the
Optional Securities, which shall be at the purchase price per Security to be
paid for the Firm Securities. Such Optional Securities shall be purchased for
the account of each Underwriter in the same proportion as the number of shares
of Firm Securities set forth opposite such Underwriter's name bears to the
total number of shares of Firm Securities (subject to adjustment by the
Representatives to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall
be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by the Representatives to the Company.
The time for the delivery of and payment for the Optional
Securities, being herein referred to as the "Second Closing Date", which may be
the First Closing Date (the First Closing Date and the Second Closing Date, if
any, being sometimes referred to as a "Closing Date"), shall be determined by
the Representatives but shall be not earlier than two nor later than seven
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver the Optional Securities to the
Representatives for the accounts of the several Underwriters against payment of
the purchase price therefor by certified or official bank check or checks in
the funds specified in the Terms Agreement with respect to payment for the Firm
Securities and will be made available for checking and packaging at a
reasonable time in advance of the Second Closing Date.
The obligations of the Underwriters to purchase the Securities
will be several and not joint. It is understood that the Underwriters propose
to offer the Securities for sale as set forth in the Prospectus. The
certificates for the Securities will be in definitive form, in such
denominations and registered in such names as the Underwriters may request.
-3-
<PAGE> 4
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to Sullivan & Cromwell,
counsel for the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with
each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representatives, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its
reasonable best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, 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,
the Company, at its own expense, promptly will 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. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the
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<PAGE> 5
Company will make generally available to its security-holders an
earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration
statement relating to the Registered Securities, (ii) the effective
date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of
such Terms Agreement, which will satisfy the provisions of Section
11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
and so long as delivery of a Prospectus by any Underwriter or dealer
may be required under the Act, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as are requested. The Company will pay the
expenses of printing and distributing all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(g) During the period of 10 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale
-5-
<PAGE> 6
under the laws of such jurisdictions as the Representatives may
designate and the printing of memoranda relating thereto and for any
expenses incurred in distributing the Prospectus, any preliminary
prospectuses and any preliminary prospectus supplements to
Underwriters.
(i) For a period beginning at the time of execution of the
Terms Agreement and ending ___ days after the Closing Date, without
the prior written consent of the Representatives, the Company will not
offer, sell, contract to sell or otherwise dispose of any shares of
its Common Stock or securities convertible into, or exercisable or
exchangeable for shares of its Common Stock except issuances in
accordance with the terms of the Company's Preferred Stock Purchase
Rights, or up to [ ] shares issuable pursuant to any employee or
director stock option plan, stock ownership plan, stock bonus plan,
stock compensation plan or dividend reinvestment plan of the Company
in effect on the date hereof or issuances upon the conversion of
securities or the exercise of warrants outstanding on the date hereof.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities on the Second
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young, confirming that they are
independent auditors within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the consolidated financial
statements and any supplementary financial information and
schedules audited by them and included in the Registration
Statement or the Prospectus, comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations, and the
audited financial
-6-
<PAGE> 7
statements of SPR included in the Registration
Statement or Prospectus comply in all material respects with
Article 3-05 of Regulation S-X;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71 with respect to any unaudited financial statements and
read any unaudited financial data and unaudited pro forma
financial data included in such Prospectus and the unaudited
financial statements from which such financial data were
obtained;
(iii) on the basis of the procedures and reading referred
to in (ii) above, 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 and inquiries of
officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited pro forma combined
condensed statements of earnings and pro forma
combined condensed balance sheets included in the
Prospectus do not comply as to form in all material
respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission and the
related published Rules and Regulations or the pro
forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(B) the unaudited financial statements of
the Company included in such Prospectus do not comply
in form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made for them to be in
conformity with generally accepted accounting
principles;
-7-
<PAGE> 8
(C) as of a specified date not more than
five days prior to the date of the Terms Agreement,
there was any change in the capital stock or any
increase in short-term debt and current maturities of
long-term debt or long-term debt of the Company and
its consolidated subsidiaries or there was any
decrease in consolidated net current assets or total
shareholders' equity, as compared with amounts shown
on the latest balance sheet of the Company included
in the Prospectus; or
(D) for the period from the date of the
latest statement of earnings of the Company included
in the Prospectus to the specified date referred to
in clause (C) there were any decreases, as compared
with the corresponding period of the previous year in
consolidated net sales or in the total or per share
amounts of consolidated earnings from continuing
operations or net earnings;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) with respect to the unaudited combined condensed
balance sheet of TRW Automotive Aftermarket Group ("AAB") at
June 30, 1992 and the unaudited combined condensed statements
of earnings for the six months ended June 30, 1992 and 1991,
and the unaudited combined condensed statement of cash flows
for the six month period ended June 30, 1992, included in the
Prospectus they have read such unaudited combined condensed
financial statements and
(A) agreed the amounts contained therein
with the Company's accounting records as of June 30,
1992 and 1991, and for the six month periods then
ended; and
(B) on September 14, 1992 inquired of
certain officials of AAB who have responsibility for
financial and accounting matters whether such
unaudited combined condensed financial statements (i)
are in conformity with generally accepted accounting
principles applied on a basis substantially
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<PAGE> 9
consistent with that of the audited combined
financial statements of AAB included in the
Prospectus, and (ii) comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations and that those officials stated that such
unaudited combined condensed financial statements (i)
are in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements, and
(ii) comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations, except
that the unaudited combined condensed financial
statements of AAB do not include an unaudited combined
condensed statement of cash flows for the six months
ended June 30, 1991 as required by generally accepted
accounting principles;
(v) with respect to the unaudited combined condensed
statement of earnings of AAB for the period from January 1,
1992 to October 20, 1992 included in the Prospectus, they have
read such unaudited financial statements and
(A)(i) agreed the underlying unadjusted
amounts to the accounting records of AAB, and (ii)
proved the arithmetic accuracy of the application of
the adjustments made by the Company to the unaudited
financial statement for it to be in conformity with
generally accepted accounting principles on a basis
substantially consistent with that of the audited
combined financial statements of AAB; and
(B) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters of the Company and who were
responsible for preparation of such unaudited
combined condensed statement of earnings subsequent
to the October 20, 1992 purchase of AAB by the
Company whether, since October 20, 1992, anything has
come to their attention that caused them to believe
that such unaudited combined condensed statement of
earnings (i) requires material modifications to be in
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<PAGE> 10
conformity with generally accepted accounting
principles, and (ii) complies as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations and that those officials stated
that based on their knowledge such unaudited combined
condensed statement of earnings (i) does not require
material modifications to be in conformity with
generally accepted accounting principles, and (ii)
complies as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations; and
(vi) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed
included in such Prospectus for purposes of this subsection. With
respect to the Company's compliance with Article 3-05 of Regulation
S-X, Ernst & Young may rely on the accuracy of the audited financial
statements of SPR included in such Prospectus.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Arthur Andersen & Co., confirming that they are
independent auditors within the meaning of the Act and the applicable
and published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements audited
by them and included in the
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<PAGE> 11
Registration Statement and the Prospectus, comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations (except that they need not opine as to such
financial statements' compliance with Article 3-05 of
Regulation S-X);
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71 with respect to the unaudited financial statements of
Sealed Power Corporation and Sealed Power Corporation of
Canada, Ltd. (collectively "SPR") included in such Prospectus,
and read the unaudited financial data of SPR included in such
Prospectus and the unaudited financial statements from which
such financial information was obtained;
(iii) on the basis of the procedures and reading referred
to in (ii) above, inspection of the minute books of SPR since
the date of the latest audited financial statements of SPR
included in the Prospectus and inquiries of officials of SPR
who had responsibility for financial and accounting matters
and other specified procedures, nothing came to their
attention that caused them to believe that the unaudited
combined condensed statement of assets and liabilities of SPR
at September 30, 1993 and the unaudited combined condensed
statements of revenues and expenses for the nine months ended
September 30, 1993, and 1992, and the unaudited combined
condensed statement of cash flows for the nine months ended
September 30, 1993 do not comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or any
material modifications should be made for them to be in
conformity with generally accepted accounting principles;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of SPR subject to the internal controls of
SPR's accounting system or are derived
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<PAGE> 12
directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed
included in such Prospectus for purposes of this subsection. Arthur
Andersen & Co. may note that the audited financial statements of SPR
included in such Prospectus have been prepared for the purpose of
complying with the applicable accounting requirements of the Act and
the related published Rules and Regulations for filing with the
Commission pursuant to the Agreement of Purchase and sale between SPX
Corporation ("SPX") and Federal-Mogul Corporation, dated as of
September 15, 1993, and that such financial statements are not
intended to be a complete presentation of SPR's assets, liabilities,
equity, revenues, expenses and cash flows. In addition, they may note
that SPR's operations reflected in the financial statements of SPR
included in such Prospectus represent SPX's operations that marketed
and distributed replacement engine and under vehicle parts in the
United States and Canada, and that the operating results as presented
in such financial statements do not include any costs associated with
financing such operations or charges for certain administrative and
management functions provided centrally by SPX and that, as a result,
such financial statements may not necessarily reflect the combined
income that would have resulted if SPR's operations had been conducted
on an independent basis.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(d) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective
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<PAGE> 13
change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment
of a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities or the Registered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by
either Standard & Poor's Corporation or Moody's Investors Services,
Inc., or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company for possible downgrading; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by Federal or New York authorities; or (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the
Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of George N. Bashara, Jr., General Counsel of the
Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Michigan, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction
in which it owns or leases substantial properties or in which
the conduct of its business requires such qualification and in
which the consequences of a failure to so qualify would have a
material adverse effect on the properties or business of the
Company and its subsidiaries taken as a whole;
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<PAGE> 14
(ii) The Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the
Securities;
(iii) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Securities by the Company, except such as have been
obtained and made under the Act and such as may be required
under state securities laws;
(v) The execution, delivery and performance of the
Terms Agreement (including the provisions of this Agreement)
and the issuance and sale of the Securities will not result in
a breach or violation of any of the terms and provisions, of,
or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound
or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has full power
and authority to authorize, issue and sell the Securities as
contemplated by
-14-
<PAGE> 15
the Terms Agreement (including the provisions of this
Agreement);
(vi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of
their respective dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that such
registration statement, as of its effective date, the
Registration Statement or any amendments or supplements
thereto, as of their respective dates, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendments or supplements thereto, as of their respective
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other
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<PAGE> 16
financial data contained in the Registration Statement
or the Prospectus; and
(vii) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by the Company.
Such counsel shall also state that such counsel has
been advised by the New York Stock Exchange that the
Securities have been duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Wachtell, Lipton, Rosen & Katz, counsel for the
Company, to the effect that:
(i) The Securities delivered on such Closing Date
conform to the description thereof contained in the
Prospectus;
(ii) Under the laws of the State of New York and federal
law, no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(iii) To the knowledge of such counsel, under the laws of
the State of New York and federal law, the execution, delivery
and performance of the Terms Agreement (including the
provisions of this Agreement) and the issuance and sale of the
Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Company or any of its properties, or any agreement or
instrument to which the Company is a party, or by which the
Company is bound, or to which any of the properties of the
Company is subject, or the charter or by-laws of the Company,
and the Company has full power and authority to authorize,
issue and sell the Securities as
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<PAGE> 17
contemplated by the Terms Agreement (including the
provisions of this Agreement);
(iv) To the extent applicable, such counsel has reviewed
the information in the Prospectus under the caption "Certain
Federal Income Tax Considerations" and to the extent they
constitute matters of law or legal conclusion, they are
accurate in all material respects; and
(v) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of
their respective dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, the
Registration Statement, or any amendments or supplements
thereto, as of their respective dates, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendments or supplements thereto, as of their respective
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus.
In rendering such opinion, Wachtell, Lipton, Rosen & Katz may
rely as to all matters governed by Michigan law upon the
opinion of George N. Bashara, Jr. referred to above (provided
that they
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<PAGE> 18
shall state that they believe that the Under-writers
are justified in relying upon such opinion).
(g) 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 Securities, the Registration Statement,
the Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, Sullivan & Cromwell may rely as to the
incorporation of the Company and all other matters governed by
Michigan law upon the opinion of George N. Bashara, Jr. referred to
above.
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operation of
the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated
such Closing Date, of Ernst & Young, which reconfirms the matters set
forth in their letter delivered pursuant to subsection (a) of this
Section and states in effect that:
(i) in their opinion, any financial statements and any
supplementary financial information or schedules audited by
them and included in the Registration Statement or the
Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section comply in form in
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<PAGE> 19
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to any unaudited financial statements and
read any unaudited financial data and unaudited pro forma
financial data included in such Prospectus and not covered by
their letter delivered pursuant to subsection (a) of this
Section;
(iii) on the basis of the procedures and reading
referred to in (ii) above, 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 and inquiries
of officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited pro forma combined condensed
statements of earnings and pro forma combined condensed
balance sheets, if any, included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and the related published
Rules and Regulations or the pro forma adjustments have not
been properly applied to the historical amounts in compilation
of those statements.
(B) the unaudited financial statements, if any,
included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section do not
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made for them to be in conformity with generally accepted
accounting principles;
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<PAGE> 20
(C) as of a date not more than five days prior to
such Closing Date, there was any change in the capital stock
or any increase in short-term debt and current maturities of
long-term debt or long-term debt of the Company and its
consolidated subsidiaries or there was any decrease in
consolidated net current assets or total shareholders' equity,
as compared with amounts shown on the latest balance sheet of
the Company included in the Prospectus; or
(D) for the period from the date of the latest
statement of earnings of the Company included in the
Prospectus to the specified date referred to in clause (C)
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales in the
total or per share amounts of consolidated earnings from
continuing operations or net earnings;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for the purposes of this subsection.
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<PAGE> 21
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as they reasonably
request.
6. 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or 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 such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will severally indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon the
omission or the 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
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives, if any, specifically
for use therein, and will reimburse any legal or other expenses reasonably
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<PAGE> 22
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action 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 any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 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, 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
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<PAGE> 23
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 which 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. 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 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 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 which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The 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 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 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each 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.
-23-
<PAGE> 24
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities under the
Terms Agreement on either the First or Second Closing Date and the aggregate
number of shares of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of the Securities that the Underwriters are obligated to
purchase on such Closing Date, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are
made by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
the Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of the Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8 (provided that if such default
occurs with respect to the Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement 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, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or
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<PAGE> 25
if for any reason the purchase of the Securities by the Underwriters
under the Terms Agreement is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant
to Section 6 shall remain in effect and if any Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 5(d), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with
the offering of the Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 26555 Northwestern
Highway, Southfield, Michigan 48034, Attention: George N. Bashara, Jr.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York without regard to the choice of law provisions thereof.
-25-
<PAGE> 26
FEDERAL-MOGUL CORPORATION
("Company")
Common Stock
TERMS AGREEMENT
____________, 19__
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we -- We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. 33-51265)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title:
Number of Firm Securities:
Maximum Number of Optional Securities:
Purchase Price: $__________ per share.
Expected Reoffering Price: $_________ per share, subject to
change by the undersigned.
Closing: ____________A.M. on ________________, 19______, at
_______________, in New York Clearing House (next day) funds.
<PAGE> 27
(1)Underwriter[s']['s] Compensation: $_______, payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
[Name[s] and Address[es] of Representative[s]:]
The respective number of shares of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
number of shares to be purchased by the Underwriters listed in Schedule A
hereto by the number of shares to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities].
The Securities will be made available for checking and
packaging at the office of _________ at least 24 hours prior to the Closing
Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
- ----------------------
(1) Include if purchase is at public offering price and compensation
payable separately.
-2-
<PAGE> 28
[Please signify your acceptance of the foregoing by return wire not later than
__P.M. today.]
Very truly yours,
[ ]
[Insert name(s) of other Rep-
resentatives or Underwriters]
[On behalf of--themselves--
itself--and as Representa-
tive[s] of the Several] [As]
Underwriter[s]
[By ____________________________]
By __________________________
[Insert Title]
-3-
<PAGE> 29
SCHEDULE A
<TABLE>
<CAPTION>
Principal
Underwriter Amount
----------- ---------
<S> <C>
____________________________ . . . . . . . . . . . . . . . . . . . . $
__________
Total . . . . . . . . . . . . . $__________
</TABLE> __________
-4-
<PAGE> 30
To: [Lead Underwriter]
[Insert name(s) of other Representatives or
Underwriters]
As [Representative[s] of the Several] Underwriter[s],
[c/o [address]]
We accept the offer contained in your [letter] [wire], dated
_________, 19__, relating to ______ shares of our Common Stock, without par
value. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the under-signed's registration
statement on Form S-3 (No. 33-51265) ("Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
FEDERAL-MOGUL CORPORATION
By _________________________
[Insert Title]
-5-
<PAGE> 1
EXHIBIT 1.3
FEDERAL-MOGUL CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Federal-Mogul Corporation, a Michigan corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
either an indenture relating to senior Debt Securities, dated as of _________,
19__ ("Senior Indenture"), between the Company and __________, as trustee, or
an indenture relating to Subordinated Debt Securities, dated as of __________,
19__ ("Subordinated Indenture"), between the Company and Continental Bank,
N.A., as trustee, in each case, in one or more series, which series may vary as
to interest rates, maturities, redemption provisions, selling prices and other
terms, with all such terms for any particular series of the Registered
Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(d)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33-51265),
including a prospectus, relating to the Registered Securities
has been filed with the Securities and Exchange Commission
("Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the
"Registration
<PAGE> 2
Statement", and the prospectus included in such Registration
Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering
thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to
as the "Prospectus".
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939
("Trust Indenture Act") and the rules and regulations of the
Commission ("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
each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such
documents will 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, except that the foregoing does not apply to
statements in or omissions from any of such documents based
upon written information furnished to the Company by any
Underwriter through the Representatives, if any, specifically
for use therein.
3. Purchase and Offering of Securities. The
obligation of the Underwriters to purchase the Securities will be evidenced by
an exchange of telegraphic or other written communications ("Terms Agreement")
at the time the Company determines to sell the Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, and the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time
and date of
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<PAGE> 3
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters
may request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Sullivan & Cromwell, counsel for
the Underwriters, one signed copy of the registration statement
-3-
<PAGE> 4
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with
each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representatives, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its
reasonable best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, 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,
the Company, at its own expense, promptly will 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. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the later of
(i) the effective date of the registration statement relating
-4-
<PAGE> 5
to the Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to
become effective prior to the date of such Terms Agreement and (iii)
the date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
and so long as delivery of a Prospectus by any Underwriter or dealer
may be required under the Act, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as are requested. The Company will pay the
expenses of printing and distributing all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of 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.
(g) During the period of 10 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating
-5-
<PAGE> 6
thereto for any fees charged by investment rating agencies for the
rating of the Securities, for the filing fee of the National
Association of Securities Dealers, Inc. relating to the Registered
Securities and for any expenses incurred in distributing the
Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the
Terms Agreement and ending after the later of (i) the termination of
trading restrictions for such Securities, as notified to the Company
by the Representatives and (ii) the Closing Date for such Securities,
without the prior written consent of the Representatives, the Company
will not offer, sell, contract to sell or otherwise dispose of any
United States dollar-denominated debt securities or, if the Securities
are denominated in a currency other than United States dollars, debt
securities denominated in the currency in which the Securities are
denominated, in any case, issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young, confirming that they are
independent auditors within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the consolidated financial
statements and any supplementary financial information and
schedules audited by them and included in the Registration
Statement or the Prospectus, comply all material respects with
the applicable accounting requirements of the Act and the
related published Rules and Regulations, and the audited
financial statements of SPR included in the Registration
Statement or
-6-
<PAGE> 7
Prospectus comply in all material respects with Article 3-05
of Regulation S-X;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71 with respect to any unaudited financial statements and
read any unaudited financial data and the unaudited pro forma
financial data included in such Prospectus and the unaudited
financial statements from which such financial data were
obtained;
(iii) on the basis of the procedures and reading referred
to in (ii) above, 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 and inquiries of
officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited pro forma combined
condensed statements of earnings and pro forma
combined condensed balance sheets included in the
Prospectus do not comply as to form in all material
respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission and the
related published Rules and Regulations or the pro
forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(B) the unaudited financial statements of
the Company included in such Prospectus do not comply
in form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made for them to be in
conformity with generally accepted accounting
principles;
(C) as of a specified date not more than
five days prior to the date of the Terms
-7-
<PAGE> 8
Agreement, there was any change in the capital stock
or any increase in short-term debt and current
maturities of long-term debt or long-term debt of the
Company and its consolidated subsidiaries or there
was any decrease in consolidated net current assets
or total shareholders' equity, as compared with
amounts shown on the latest balance sheet of the
Company included in the Prospectus; or
(D) for the period from the date of the
latest statement of earnings of the Company included
in the Prospectus to the specified date referred to
in clause (C) there were any decreases, as compared
with the corresponding period of the previous year in
consolidated net sales or in the total or per share
amounts of consolidated earnings from continuing
operations or net earnings;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) with respect to the unaudited combined condensed
balance sheet of TRW Automotive Aftermarket Group ("AAB") at
June 30, 1992 and the unaudited combined condensed statements
of earnings for the six months ended June 30, 1992 and 1991,
and the unaudited combined condensed statement of cash flows
for the six month period ended June 30, 1992, included in the
Prospectus they have read such unaudited combined condensed
financial statements and
(A) agreed the amounts contained therein
with the Company's accounting records as of June 30,
1992 and 1991, and for the six month periods then
ended; and
(B) on September 14, 1992 inquired of
certain officials of AAB who have responsibility for
financial and accounting matters whether such
unaudited combined condensed financial statements (i)
are in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited combined
financial statements of AAB included in the
-8-
<PAGE> 9
Prospectus, and (ii) comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations and that those officials stated
that such unaudited combined condensed financial
statements (i) are in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements, and (ii) comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations, except that the unaudited
combined condensed financial statements of AAB do not
include an unaudited combined condensed statement of
cash flows for the six months ended June 30, 1991 as
required by generally accepted accounting principles;
(v) with respect to the unaudited combined condensed
statement of earnings of AAB for the period from January 1,
1992 to October 20, 1992 included in the Prospectus, they have
read such unaudited financial statements and
(A)(i) agreed the underlying unadjusted
amounts to the accounting records of AAB, and (ii)
proved the arithmetic accuracy of the application of
the adjustments made by the Company to the unaudited
financial statement for it to be in conformity with
generally accepted accounting principles on a basis
substantially consistent with that of the audited
combined financial statements of AAB; and
(B) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters of the Company and who were
responsible for preparation of such unaudited
combined condensed statement of earnings subsequent
to the October 20, 1992 purchase of AAB by the
Company whether, since October 20, 1992, anything has
come to their attention that caused them to believe
that based on their knowledge such unaudited combined
condensed statement of earnings (i) requires material
modifications to be in conformity with
-9-
<PAGE> 10
generally accepted accounting principles, and (ii)
complies as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations and that
those officials stated that based on their knowledge
such unaudited combined condensed statement of
earnings (i) does not require material modifications
to be in conformity with generally accepted
accounting principles, and (ii) complies as to form
in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations; and
(vi) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed
included in such Prospectus for purposes of this subsection. With
respect to the Company's compliance with Article 3-05 of Regulation
S-X, Ernst & Young may rely on the accuracy of the audited financial
statements of SPR included in such Prospectus.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Arthur Andersen & Co., confirming that they are
independent auditors within the meaning of the Act and the applicable
and published Rules and Regulations thereunder and stating in effect
that:
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<PAGE> 11
(i) in their opinion, the financial statements
audited by them and included in the Registration Statement and
the Prospectus, comply in form in all material respects with
the applicable accounting requirements of the Act and the
related published Rules and Regulations (except that they need
not opine as to such financial statements' compliance with
Article 3-05 of Regulation S-X);
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to the unaudited financial statements of
Sealed Power Corporation and Sealed Power Corporation of
Canada, Ltd. (collectively "SPR") included in such Prospectus,
and read the unaudited financial data of SPR included in such
Prospectus and the unaudited financial statements from which
such financial information was obtained;
(iii) on the basis of the procedures and reading referred
to in (ii) above, inspection of the minute books of SPR since
the date of the latest audited financial statements of SPR
included in the Prospectus, inquiries of officials of SPR who
had responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention
that caused them to believe that the unaudited combined
condensed statement of assets and liabilities of SPR at
September 30, 1993 and the unaudited combined condensed
statements of revenues and expenses for the nine months ended
September 30, 1993, and 1992, and the unaudited combined
condensed statement of cash flows for the nine months ended
September 30, 1993 do not comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or any
material modifications should be made for them to be in
conformity with generally accepted accounting principles;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such Prospectus (in each
case to the extent that such dollar amounts, percentages and
other
-11-
<PAGE> 12
financial information are derived from the general accounting
records of SPR subject to the internal controls of SPR's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into such Prospectus shall be deemed
included in such Prospectus for purposes of this subsection. Arthur
Andersen & Co. may note that the audited financial statements of SPR
included in such Prospectus have been prepared for the purpose of
complying with the applicable accounting requirements of the Act and
the related published Rules and Regulations for filing with the
Commission pursuant to the Agreement of Purchase and sale between SPX
Corporation ("SPX") and Federal-Mogul Corporation, dated as of
September 15, 1993, and that such financial statements are not
intended to be a complete presentation of SPR's assets, liabilities,
equity, revenues, expenses and cash flows. In addition, they may note
that SPR's operations reflected in the financial statements of SPR
included in such Prospectus represent SPX's operations that marketed
and distributed replacement engine and under vehicle parts in the
United States and Canada, and that the operating results as presented
in such financial statements do not include any costs associated with
financing such operations or charges for certain administrative and
management functions provided centrally by SPX and that, as a result,
such financial statements may not necessarily reflect the combined
income that would have resulted if SPR's operations had been conducted
on an independent basis.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
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<PAGE> 13
(d) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment
of a majority in interest of the Underwriters, including any
Representatives, materially impairs the investment quality of the
Securities or the Registered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by either Standard &
Poor's Corporation or Moody's Investors Services, Inc., or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company for possible
downgrading; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal or New York authorities or, if the Securities are denominated
in a currency other than United States dollars, a banking moratorium
declared by the authorities in the country of such currency; or (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency or, if the
Securities are denominated in a currency other than United States
dollars, a change or prospective change in, or governmental action
affecting, exchange controls applicable to such currency if, in the
judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity, emergency, change or action makes it
impractical or inadvisable to proceed with completion of the sale of
and payment for the Securities.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of George N. Bashara, Jr., General Counsel of the
Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Michigan, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in
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<PAGE> 14
good standing in each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification and in which the consequences of a
failure to so qualify would have a material adverse effect on
the properties or business of the Company and its subsidiaries
taken as a whole;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Securities have been duly authorized;
the Securities other than any Contract Securities have been
duly executed, authenticated, issued and delivered; the
Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, 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 similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities
other than any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the
Prospectus;
(iii) If applicable, the Securities other than any
Contract Securities are, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will be, convertible into shares of common
stock, without par value ("Common Stock"), of the Company or
preferred stock, without par value ("Preferred Stock"), of the
Company as the case may be, in accordance with the terms of
the Indenture; the shares of Common Stock or Preferred Stock,
as the case may be, initially issuable upon conversion of the
Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the
outstanding shares of such Common Stock or Preferred Stock, as
the case may be, if any, have been duly authorized and validly
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<PAGE> 15
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities or the shares of Common Stock or
Preferred Stock, as the case may be, into which the Securities
are convertible or exchangeable;
(iv) There are no contracts, agreements or understandings
known to such counsel between the Company and any person
granting such person the right to require the Company to file
a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(v) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Securities by the Company, except such as have been
obtained and made under the Act and the Trust Indenture Act
and such as may be required under state securities laws;
(vi) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts and the
issuance and sale Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of
any of the terms and provisions, of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to
authorize,
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<PAGE> 16
issue and sell the Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of
their respective dates, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations; such counsel has no reason
to believe that such registration statement, as of its
effective date, the Registration Statement or any amendments
or supplements thereto, as of their respective dates,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus or any amendments or supplements thereto,
as of their respective dates, contained any untrue statement
of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
the descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the
information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
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<PAGE> 17
in the Registration Statement or the Prospectus; and
(viii) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
If applicable, such counsel shall also state that such counsel
has been advised by the New York Stock Exchange that the
Securities have been duly authorized for listing subject to
official notice of issuance on the New York Stock Exchange.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Wachtell, Lipton, Rosen & Katz, counsel for the
Company, to the effect that:
(i) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract Securities
have been duly executed, authenticated, issued and delivered;
the Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, 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 similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities
other than any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the
Prospectus;
(ii) If applicable, the Securities other than any
Contract Securities are, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will be, convertible into shares of Common
Stock or Preferred Stock, as the case may be, of the Company
in accordance with the terms of
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<PAGE> 18
the Indenture; the shares of Common Stock or Preferred Stock,
as the case may be, initially issuable upon conversion of the
Securities have been duly authorized and reserved for issuance
upon such conversion;
(iii) Under the laws of the State of New York and federal
law, no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(iv) To the knowledge of such counsel, under the laws of
the State of New York and federal law, the execution, delivery
and performance of the Indenture, the Terms Agreement
(including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any of
its properties, or any agreement or instrument to which the
Company is a party, or by which the Company is bound, or to
which any of the properties of the Company is subject, or the
charter or by-laws of the Company, and the Company has full
power and authority to authorize, issue and sell the
Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement);
(v) To the extent applicable, such counsel has
reviewed the information in the Prospectus under the caption
"Certain Federal Income Tax Considerations" and to the extent
they constitute matters of law or legal conclusion, they are
accurate in all material respects;
(vi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the
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<PAGE> 19
date specified therein, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; such counsel have no reason to believe that
such registration statement, as of its effective date, the
Registration Statement, or any amendments or supplements
thereto, as of their respective dates, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendments or supplements thereto, as of their respective
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus; and
(vii) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion, Wachtell, Lipton, Rosen & Katz may
rely as to all matters governed by Michigan laws upon the
opinion of George N. Bashara, Jr. referred to above (provided
that they shall state that they believe that the Underwriters
are justified in relying upon such opinion).
(g) The Representatives shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Securities, the Registration Statement,
the
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<PAGE> 20
Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, Sullivan & Cromwell may rely as to the
incorporation of the Company and all other matters governed by
Michigan law upon the opinion of George N. Bashara, Jr. referred to
above.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operation of
the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated
the Closing Date, of Ernst & Young, which reconfirms the matters set
forth in their letter delivered pursuant to subsection (a) of this
Section and states in effect that:
(i) in their opinion, any financial statements and
any supplementary financial information or schedules audited
by them and included in the Registration Statement or
Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section comply in form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as disclosed in SAS
No. 71 with respect to any unaudited financial statements
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<PAGE> 21
and read any unaudited financial data and unaudited pro forma
financial data included in such Prospectus and not covered by
their letter delivered pursuant to subsection (a) of this
Section;
(iii) on the basis of the procedures and reading referred
to in (ii) above, 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 and inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited pro forma combined condensed
statements of earnings and pro forma combined condensed
balance sheets, if any, included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and the related published
Rules and Regulations or the pro forma adjustments have not
been properly applied to the historical amounts in compilation
of those statements.
(B) the unaudited financial statements, if any,
included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section do not
comply in form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made for them to be in conformity with generally accepted
accounting principles;
(C) as of a specified date not more than five days
prior to the Closing Date, there was any change in the capital
stock or any increase in short-term debt and current
maturities of long-term debt or long-term debt of the Company
and its consolidated subsidiaries or there was any decrease in
consolidated net current assets or total shareholders' equity,
as compared with
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<PAGE> 22
amounts shown on the latest balance sheet of the Company
included in the Prospectus; or
(D) for the period from the date of the latest
statement of earnings of the Company included in the
Prospectus to the specified date referred to in clause (C)
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales, or in
the total or per share amounts of consolidated earnings from
continuing operations or net earnings or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information included in the Prospectus and not
covered by their letter delivered pursuant to subsection (a)
of this Section (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter
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<PAGE> 23
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 any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
or 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 such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will 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 in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(b) Each Underwriter will severally indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
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 reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of
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<PAGE> 24
any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action 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 any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 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, 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 which 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
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<PAGE> 25
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. 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 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 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 which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The 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 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 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each 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.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase
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<PAGE> 26
does not exceed 10% of the total principal amount of the Securities, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments under this Agreement and the Terms Agreement, to
purchase the Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of the Securities and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities by other persons are not made within 36 hours after
such default, such Terms Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company, except as provided in
Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement 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, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters
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<PAGE> 27
pursuant to Section 6 shall remain in effect. If the purchase of the
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 7 or
the occurrence of any event specified in clause (iii), (iv) or (v) of Section
5(d), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 26555 Northwestern
Highway, Southfield, Michigan 48034, Attention: George N. Bashara, Jr.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to the choice of law provisions thereof.
-27-
<PAGE> 28
FEDERAL-MOGUL CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
____________, 19__
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we -- We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. 33-51265)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title: [__%] [Floating Rate]--Notes--Debentures--Due
_________________.
Principal Amount: $___________.
Indenture: Indenture, dated __________, 19__, between the
Company and ______________ as Trustee.
Interest: [__% per annum, from __________, 19__, payable
semiannually on __________ and ___________, commencing ______________, 19__, to
holders of record on the preceding __________ or __________, as the case may
be.] [Zero coupon.]
Interest Payment Dates:
<PAGE> 29
Maturity:
Redemption Provisions:
Conversion Rights:
Sinking Fund:
Defeasance Provisions:
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall
be _____________, 19__. Underwriters' fee is ___% of the principal amount of
the Contract Securities.]
[Other Terms]
Purchase Price: ______% of principal amount, plus accrued
interest[, if any,] from _______________, 19__ [and accrued amortization, if
any, from ________________, 19__].
Expected Reoffering Price: ___% of principal amount, subject
to change by the undersigned.
Closing: ____________A.M. on ________________, 19______, at
_______________, in New York Clearing House (next day) funds.
[Name[s] and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities].
The Securities will be made available for checking and
packaging at the office of _________ at least 24 hours prior to the Closing
Date.
-2-
<PAGE> 30
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
-3-
<PAGE> 31
[Please signify your acceptance by return wire not later than __P.M. today.]
Very truly yours,
[Lead Underwriter]
[Insert name(s) of other
Representatives or Underwriters]
[On behalf of--themselves-- itself--and
as Representative[s] of the Several] [As]
Underwriter[s]
[By __________________________]
By __________________________
[Insert Title]
-4-
<PAGE> 32
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
Lead Underwriter . . . . . . . . . . . . . . . . . . . . . . . $
_________
Total . . . . . . . . . . . . . . $
_________
_________
-5-
<PAGE> 33
To: [Lead Underwriter]
[Insert name(s) of other Representatives or
Underwriters]
As [Representative[s] of the Several] Underwriter[s],
[c/o [address]
[ ]
[ ]
We accept the offer contained in your [letter] [wire], dated
_________, 19__, relating to $______ million principal amount of our [Insert
title of Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 33-51265) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
FEDERAL-MOGUL CORPORATION
By _________________________
[Insert Title]
-6-
<PAGE> 34
ANNEX I
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address
shown below so as to arrive not later than
9:00 A.M., New York time, on
________________ ___, 19__*.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
Federal-Mogul Corporation
c/o [Lead Underwriter]
[ ]
[ ]
Attention: [Insert name of
Corporate Finance Officer]
Gentlemen:
The undersigned hereby agrees to purchase from Federal-Mogul
Corporation, a Michigan corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ______________, 19__ ("Delivery Date"),]
$______________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated __________, 19__ and a Prospectus
Supplement dated __________, 19__ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, [and accrued amortization, 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:
- ----------------
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
<PAGE> 35
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
------------- ----------------
_____________ $___________
_____________ $___________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in New York Clearing House
(next day) funds at the office of ____________________ at ______ .M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a
purchase as of the date of this Contract; that the obligation of the Company to
make delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on--the--each--Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at--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 Underwriters the total principal
amount of the Securities less the principal amount thereof covered by this and
other similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such
-2-
<PAGE> 36
effect, accompanied by copies of the opinion[s] 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.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_____________________________
(Name of Purchaser)
By __________________________
__________________________
(Title of Signatory)
__________________________
__________________________
(Address of Purchaser)
Accepted, as of the above date.
FEDERAL-MOGUL CORPORATION
By _____________________
[Insert Title]
-3-
<PAGE> 1
Exhibit 4-7
Draft of January 5, 1994
FEDERAL-MOGUL CORPORATION
TO
CONTINENTAL BANK, NATIONAL ASSOCIATION
Trustee
______________
INDENTURE
Dated as of , 199__
______________
Senior Debt Securities
<PAGE> 2
FEDERAL-MOGUL CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
-----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Foreign Government Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
______________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register" and "Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . 12
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 205. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
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----
<S> <C>
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . 30
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . 31
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
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ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 608. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . 47
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . 49
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 50
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . 56
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . 59
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . 60
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . 64
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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INDENTURE, dated as of , 199__ between Federal-Mogul
Corporation, a corporation duly organized and existing under the laws of the
State of Michigan (herein called the "Company"), having its principal office at
26555 Northwestern Highway, Southfield, Michigan and Continental Bank, National
Association, a corporation 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 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date hereof;
<PAGE> 10
(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.
"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.
"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 (i) 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, or (ii) a certificate signed by the authorized officer or
officers of the Company to whom the Board of Directors of the Company has
delegated its authority, and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
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<PAGE> 11
"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 of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee or
agent of the Trustee, in either case, in the Borough of Manhattan, The City of
New York, at which at any particular time the corporate trust business of the
Trustee shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"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.
"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.
"Foreign Government Obligation" has the meaning specified in Section 1304.
"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.
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<PAGE> 12
"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 of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"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:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
-4-
<PAGE> 13
(4) 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
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 a 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
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 or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in 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.
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"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, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to 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.
"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.
"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.
"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
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<PAGE> 15
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.
"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.
"U.S. Government Obligation" 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, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether 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.
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<PAGE> 16
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 an opinion of counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion 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 of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or 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.
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 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.
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
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<PAGE> 17
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.
The ownership of Securities shall be proved by the Security Register.
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 (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
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<PAGE> 18
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 sets 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 give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any 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 231 LaSalle Street, 16th Floor, Chicago, Illinois
60697, Attention Corporate Trust Department, 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
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<PAGE> 19
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 notification as shall be made with the approval of the Trustee 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 that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 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.
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<PAGE> 20
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 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 law of the State of New York, without regard to principles
of conflicts of laws.
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 (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security that 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 with respect to such payment 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
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<PAGE> 21
comply with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their 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.
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.]
FEDERAL-MOGUL CORPORATION
..........................................................................
No. ......... $ ........
Federal-Mogul Corporation, a corporation duly organized and existing
under the laws of Michigan (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] [if other
than Dollars, substitute other currency or currency units] 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] [if other than semi-annual interest at a fixed rate,
insert frequency of payments and payment dates], commencing ........., at [If
the Security is to bear interest at a fixed rate, insert -- the rate of ....%
per annum] [if the Security is to bear interest at a rate determined with
reference to one or more or formula, refer to description of index below],
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
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<PAGE> 22
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].
[If the Securities are Securities with respect to which the principal of or any
premium or interest may be determined with reference to one or more indices
or formulas, insert the text of such indices or formulas]
[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] [if the Security is denominated
in a currency other than U.S. dollars, specify other currency or currency unit
in which payment of the principal of and any premium or interest may be made]
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.
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<PAGE> 23
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
FEDERAL-MOGUL CORPORATION
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 ..............., 1993 (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 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
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<PAGE> 24
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,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
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,
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<PAGE> 25
<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 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 -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem 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 hereof upon the cancellation hereof.]
[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.]
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<PAGE> 26
[If the Security is convertible into securities of the Company, specify
the conversion features.]
[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
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 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.
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<PAGE> 27
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 $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, and 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.
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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 TRANSFERRED TO, OR REGISTERED OR
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY 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.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
_____________,
As Trustee
By.............................
Authorized Officer
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.
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,
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(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;
(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) any provision for the conversion or exchange of Securities of the
series, either at the option of the Holder thereof or the Company, into or
for another security or securities of the Company, the security or
securities into or for which, the period or periods within which, the price
or prices, including any adjustments thereto, at which and the other terms
and conditions upon which any Securities of the series shall be converted or
exchanged, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
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(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to one or more
indices or pursuant to a formula, the manner in which such amounts shall be
determined;
(12) 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;
(13) 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);
(14) 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;
(15) 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
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);
(16) 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;
(17) if and as 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;
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(18) 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;
(19) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(20) 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) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at one time and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of such series.
Unless otherwise provided with respect to the Securities of any series,
at the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
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 only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President 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.
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Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities 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 by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) 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;
(2) 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
(3) 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 similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
[and, if applicable, to provisions of law which may require that a judgment
for money damages rendered by a court in the United States be expressed in
United States dollars].
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.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, 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 one or more definitive
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount. 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 and tenor.
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.
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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 a series
at the office or agency of the Company 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 like
tenor and 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
like tenor and 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 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 of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified 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 any such Securities selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (B) 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
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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 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 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.
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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,
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
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
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Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid to each Holder of Securities of such series, 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 as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and 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
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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 360-day 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 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 money (either in United States dollars or such other currency
or currency units in which the Securities of any series may be payable)
in an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the
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Trustee for cancellation, for principal and any premium 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.
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 any premium
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, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security 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 any premium on any
Security of that series at its Maturity; or
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(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 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) 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 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 60
consecutive days; or
(6) 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 other similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of 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
(7) any other Event of Default provided with respect to Securities of
that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) 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 of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, 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 any 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.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium 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 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.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee 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 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,
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disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture 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 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 any
premium 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 any premium 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 any premium 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 and to Convert.
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 any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to convert
such Security in accordance with the provisions in the form of Security of any
particular series pursuant to Section 301(9) and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
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
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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
(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
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(1) in the payment of the principal of or any premium or interest on
any Security of such series, 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.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of Usury, 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 usury, 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 Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default and after the curing or waiving of
all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee shall exercise such of the rights and poweres vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent actions, its own negligent failure to act
or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default which may have occurred;
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or responsible officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of
the Securites at the time outstanding relating to the time, method and
place of conducting a proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
This Section is in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act.
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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 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:
(1) 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;
(2) 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 shall be sufficiently evidenced by a
Board Resolution;
(3) 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;
(4) 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;
(5) 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
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security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) 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
(7) 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 any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any 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 Authenticating Agent, 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, Authenticating Agent, 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 for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
SECTION 608. 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 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 a Trustee hereunder, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in the Borough of Manhattan, The City of New York. 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.
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SECTION 610. Resignation and Removal; Appointment of Successor.
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.
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.
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.
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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) 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.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with
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respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment 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 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.
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.
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.
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
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
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(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.
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 the
first or second preceding paragraph, as the case may be.
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 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).
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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 an 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 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 an 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 by first-class mail, postage prepaid, 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 an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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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 an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASSOCIATION
As Trustee
By........................
As Authenticating Agent
By........................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS 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
(1) semi-annually, not later than .................. and .......... in
each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as of
the preceding ........... or ........... as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
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.
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.
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.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than ......... in each calendar
year, commencing in ............
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
Trustee within 15 days after the same is so required to be filed with the
Commission.
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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 any premium 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 any 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; and
(3) 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 Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which
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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:
(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
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(6) to secure the Securities; 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 facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611;
(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 that 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; or
(10 ) to make provision with respect to the conversion rights of Holders,
including providing for the conversion of the securities into any security
or securities of the Company.
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 (including any change in the index,
indices or formula pursuant to which such rate is determined that would
reduce such rate for any period) or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security or any other Security which 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
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(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 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
1008, 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 1008, or the
deletion of this proviso, in accordance with the requirements of Sections
611 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
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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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 any
premium 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. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, 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
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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 Payments 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 or any premium 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 any premium and 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 or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, 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 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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look
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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 the Borough of Manhattan, The City of New York,
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, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. 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, a written
statement signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller of the Company, 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
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
SECTION 1005. 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 existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
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 1006. 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
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business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(19),
901(2) or 901(7) for the benefit of the Holders of such series, if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent 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 such Securities) in
accordance with this Article.
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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.
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, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
a portion 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. If less than all the Securities of such series
and of a specified tenor are to be redeemed (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 and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company 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
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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 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 particular 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 each such Security is 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, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will 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 any premium 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 any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities 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
such Securities is herein
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referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities, 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 as provided for by the terms of such
Securities.
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 any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, 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 ....... days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant
to Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than ..... days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment 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.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities 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), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on such Securities when payments are due, (2)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Sections 1006 and 1007
(and any other Sections or covenants applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision), and any
covenants provided pursuant to Section 301(19), 901(2) or 901(7) for the
benefit of the Holders of such Securities and (2) the occurrence
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of any event specified in Sections 501(4) (with respect to Sections 1006 and
1007 (and any other Sections or covenants applicable to such Securities that
are determined pursuant to Section 301 to be subject to this provision), and
any such covenants provided pursuant to Section 301(19), 901(2) or 901(7)) and
501(7) shall be deemed not to be or result in an Event of Default, in each case
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article 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 benefits of the Holders of such
Securities, (A) in the case of Securities of such series denominated in U.S.
dollars, (i) money in an amount, or (ii) U.S. Government Obligations that
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security that is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation 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 (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest
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on any U.S. Government Obligation which is so specified and held, provided
that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt or (B) in the case of Securities of
such series denominated in a currency other than the U.S. dollar, (i) money
in such currency in an amount, or (ii) Foreign Government Obligations that
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in such currency in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in accordance
with the terms of this Indenture and the Securities of such series. As used
herein, "Foreign Government Obligation" means (x) any security that is (i) a
direct obligation of the government that issued such currency for the
payment of which full faith and credit of such government is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality for such government the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case (i) or (ii), is not callable or redeemable
at the option of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any Foreign Government Obligation which is specified in
Clause (x) and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of
or interest on any such Foreign Government Obligation which is so specified
and held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect
of the Foreign Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the
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Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations or Foreign Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 1304 in respect of any Securities 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 such 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
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in respect of principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign 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 Outstanding
Securities.
Anything in this Article 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 that, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect the 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 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with 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.
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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.
FEDERAL-MOGUL CORPORATION
By.................................
Attest:
......................................
CONTINENTAL BANK, NATIONAL
ASSOCIATION, as Trustee
By.................................
Attest:
......................................
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<PAGE> 74
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On the .... day of ..........., 1993, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he/she is .................... of Federal-Mogul
Corporation, one of the corporations described in and which executed the
foregoing instrument; that he/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 he/she
signed his/her name thereto by like authority.
...............................................
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On the .... day of ..........., 1993, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he/she is .................... of Continental Bank,
National Association, one of the corporations described in and which
executed the foregoing instrument; that he/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 he/she signed his/her name thereto by like authority.
...............................................
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<PAGE> 1
Exhibit 4-8
Draft of January 5, 1994
FEDERAL-MOGUL CORPORATION
TO
CONTINENTAL BANK, NATIONAL ASSOCIATION TRUSTEE
______________
INDENTURE
Dated as of , 199_
______________
Subordinated Debt Securities
<PAGE> 2
FEDERAL-MOGUL CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Existing Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Foreign Government Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
______________
NOTE: This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
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Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . 20
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . 24
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . 27
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . 28
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . 30
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . 34
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
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ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . 41
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 608. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . 43
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . 45
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . 46
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . 48
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . 48
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . 49
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . 49
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 50
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . 50
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . 52
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . 53
SECTION 907. Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . 54
SECTION 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . 58
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . 60
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . 61
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . 61
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . 62
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
</TABLE>
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . 66
</TABLE>
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<PAGE> 9
INDENTURE, dated as of , 199_ between Federal-Mogul
Corporation, a corporation duly organized and existing under the laws of the
State of Michigan (herein called the "Company"), having its principal office at
26555 Northwestern Highway, Southfield, Michigan, and Continental Bank,
National Association, a corporation 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 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date hereof;
<PAGE> 10
(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.
"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.
"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 (i) 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, or (ii) a certificate signed by the authorized officer or
officers of the Company to whom the Board of Directors of the Company has
delegated its authority, and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
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<PAGE> 11
"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 of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee or
agent of the Trustee, in either case, in the Borough of Manhattan, The City of
New York, at which at any particular time the corporate trust business of the
Trustee shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"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.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Existing Subordinated Indebtedness" [to come]
"Expiration Date" has the meaning specified in Section 104.
"Foreign Government Obligation" has the meaning specified in Section 1304.
"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
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<PAGE> 12
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 of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"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:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) 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;
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(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) 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
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 a 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
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 or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under
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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.
"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, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to 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.
"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.
"Senior Indebtedness" [to come]
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"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
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<PAGE> 15
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.
"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.
"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.
"U.S. Government Obligation" 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, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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<PAGE> 16
(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 an opinion of counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion 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 of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or 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.
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 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.
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
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<PAGE> 17
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.
The ownership of Securities shall be proved by the Security Register.
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 (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
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<PAGE> 18
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 sets such record dates may designate any date 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 sets 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 give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any 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 231 LaSalle Street, 16th Floor, Chicago, Illinois
60697, Attention: Corporate Trust Department, or
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(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 notification as shall be made with the approval of the Trustee 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 that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 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.
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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 holders of Senior Indebtedness 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 law of the State of New York, without regard to principles
of conflicts of laws.
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 (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security that 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 with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
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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 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.
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.]
FEDERAL-MOGUL CORPORATION
..............................................................
No. ......... $ ........
Federal-Mogul Corporation, a corporation duly organized and existing
under the laws of Michigan (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] [if other than Dollars, substitute other currency or currency units]
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] [if other than semi-annual interest at a fixed rate,
insert frequency of payments and payment
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<PAGE> 22
dates], commencing ........., at [If the Security is to bear interest at a
fixed rate, insert -- the rate of ....% per annum] [if the Security is to bear
interest at a rate determined with reference to one or more or formula, refer
to description of index below], 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 (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 Securities are Securities with respect to which the principal of or any
premium or interest may be determined with reference to one or more indices or
formulas, insert the text of such indices or formulas]
[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] [if the Security is denominated
in a currency other than U.S. dollars, specify other currency or currency unit
in which payment of the principal of and any premium or interest may be made]
as at the time of payment is legal tender for payment of public
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<PAGE> 23
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FEDERAL-MOGUL CORPORATION
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 ..............., 1993 (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 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
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<PAGE> 24
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,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ------------- ---- -------------
<S> <C> <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,
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<PAGE> 25
<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 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 -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem 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 hereof upon the cancellation hereof.]
[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
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<PAGE> 26
of Default with respect to this Security] [, in each case] upon compliance with
certain conditions set forth in the Indenture.]
[If the Security is convertible into securities of the Company, specify
the conversion features.]
[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
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 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
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<PAGE> 27
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 $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, and 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.
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<PAGE> 28
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 TRANSFERRED TO, OR REGISTERED OR
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY 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.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASOCIATION,
As Trustee
By.....................................
Authorized Officer
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.
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,
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<PAGE> 29
(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;
(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) any provision for the conversion or exchange of Securities of the
series, either at the option of the Holder thereof or the Company, into or
for another security or securities of the Company, the security or
securities into or for which, the period or periods within which, the price
or prices, including any adjustments thereto, at which and the other terms
and conditions upon which any Securities of the series shall be converted or
exchanged, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
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<PAGE> 30
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to one or more
indices or pursuant to a formula, the manner in which such amounts shall be
determined;
(12) 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;
(13) 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);
(14) 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;
(15) 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
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);
(16) 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;
(17) if and as 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;
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<PAGE> 31
(18) 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;
(19) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series;
(20) if applicable, that the subordination provisions in Article Fourteen
shall apply to the Securities of the series or that any different
subordination provisions, including different definitions of the terms
"Senior Indebtedness" or "Existing Subordinated Indebtedness", shall apply
to Securities of the series; and
(21) 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) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at one time and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of such series.
Unless otherwise provided with respect to the Securities of any series,
at the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
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 only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
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<PAGE> 32
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President 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,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time 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 by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) 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;
(2) 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
(3) 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 similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
[and, if applicable, to provisions of law which may require that a judgment
for money damages rendered by a court in the United States be expressed in
United States dollars].
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.
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<PAGE> 33
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.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, 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 one or more definitive
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount. 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 and tenor.
-25-
<PAGE> 34
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 a series
at the office or agency of the Company 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 like
tenor and 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
like tenor and 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 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 of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified 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 any such Securities selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or
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<PAGE> 35
(B) 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 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
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<PAGE> 36
Security has been acquired by a bona fide purchaser, the Company shall execute
and 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,
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
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Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series, 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 as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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
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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 whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and 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 360-day 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 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
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(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 money (either in United States dollars or such other currency
or currency units in which the Securities of any series may be payable)
in an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium 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.
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 any premium
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, means any one of the following events (whatever the reason for such
Event of Default
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and whether it shall be occasioned by the provisions of Article Fourteen or 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 any premium 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 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) 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 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 60
consecutive days; or
(6) 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
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or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of 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
(7) 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 (other than an Event of Default specified in
Section 501(5) or 501(6)) 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 of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, 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 any 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;
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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.
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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium 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 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.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee 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 to
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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.
No provision of this Indenture 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 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 any
premium 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: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium 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 any premium and interest, respectively.
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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
(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 and to Convert.
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 any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to convert
such Security in accordance with the provisions in the form of Security of any
particular series pursuant to Section 301(9) and to institute suit for the
enforcement of any such payment and right to convert, 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
(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.
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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 any premium or interest on any
Security of such series, 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.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of Usury, 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 usury, 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred, has not been waived and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent actions, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default which may have occured:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied convenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or responsible officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount
of the Securities at the time outstanding relating to the time, method
and place of conducting a proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of
any of its rights or powers, if there shall be reasonable ground for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
This Section is in furtherance of and subject to Sections 315 and 316
of the Trust Indendure Act.
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 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:
(1) 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;
(2) 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 shall be sufficiently evidenced by a
Board Resolution;
(3) 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
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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;
(4) 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;
(5) 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;
(6) 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
(7) 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 any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any 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 Authenticating Agent, 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, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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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 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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in Trust for the benefit of the Holders of particular Securities.
SECTION 608. 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 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 a Trustee hereunder, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in the Borough of Manhattan,
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The City of New York. 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.
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.
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.
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.
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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) 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.
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If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 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 series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment 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 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.
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.
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.
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
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deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in 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.
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 the
first or second preceding paragraph, as the case may be.
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 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.
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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 an 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 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 an 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
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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 by first-class mail, postage
prepaid, 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 an 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 an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASSOCIATION,
As Trustee
By........................................,
As Authenticating Agent
By.........................................
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS 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
(1) semi-annually, not later than .................. and .......... in
each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as of
the preceding ........... or ........... as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
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.
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.
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.
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Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than ......... in each calendar
year, commencing in ............
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
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 any premium 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;
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(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any 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; and
(3) 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 Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 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:
(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
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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; 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 facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) subject to Section 907, to add to, change or eliminate any of the
provisions of Article Fourteen or change the definition of "Senior
Indebtedness" in respect of one or more series of Securities, including
Outstanding Securities, provided that any such addition, change or
elimination shall not adversely affect the interests of the Holders of
Outstanding Securities of any series in any material respect; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture, provided that 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; or
(11) to make provision with respect to the conversion rights of Holders,
including providing for the conversion of the securities into any security
or securities of the Company.
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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 (including any change in the index,
indices or formula pursuant to which such rate is determined that would
reduce such rate for any period) or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security or any other Security which 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 modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to the Holders, 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 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
1008, 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 1008, or the
deletion of this proviso, in accordance with the requirements of Sections
611 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.
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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
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.
SECTION 907. Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness shall be effective against
holders of Senior Indebtedness.
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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 any
premium 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. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, 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 Payments 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 or any premium 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 any premium and 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.
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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 or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, 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 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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, 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, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. 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, a written
statement signed by
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the Chairman of the Board, a Vice Chairman, the President or a Vice President
and by the Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller of the Company, 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 this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. 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 existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
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 1006. 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 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(19),
901(2) or 901(7) for the benefit of the Holders of such series, if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent 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 such Securities) 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, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
a portion 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. If less than all the Securities of such series
and of a specified tenor are to be redeemed (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 and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company 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 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,
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(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 particular 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 each such Security is 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.
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, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will 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.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium 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 any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities 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
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, 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 as
provided for by the terms of such Securities.
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 any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the
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terms of such Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, 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 ....... days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant
to Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than ..... days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment 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. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to
such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the
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Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities 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), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (2) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior exercise
of its option (if any) to have Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Sections 1006 and 1007
(and any other Sections or covenants applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision), and any
covenants provided pursuant to Section 301(19), 901(2) or 901(7) for the
benefit of the Holders of such Securities, (2) the occurrence of any event
specified in Sections 501(4) (with respect to Sections 1006 and 1007 (and any
other Sections or covenants applicable to such Securities that are determined
pursuant to Section 301 to be subject to this provision), and any such
covenants provided pursuant to Section 301(19), 901(2) or 901(7)) and 501(7)
shall be deemed not to be or result in an Event of Default and (3) the
provisions of Article Fourteen shall cease to be effective, in each case with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
501(4)) or Article Fourteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
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(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article 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 benefits of the Holders of such
Securities, (A) in the case of Securities of such series denominated in U.S.
dollars, (i) money in an amount, or (ii) U.S. Government Obligations that
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security that is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation 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 (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt or (B) in the case of Securities of such series
denominated in a currency other than the U.S. dollar, (i) money in such
currency in an amount, or (ii) Foreign Government Obligations that through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in such currency in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in accordance
with the terms of this Indenture and the Securities of such series. As used
herein, "Foreign Government Obligation" means (x) any security that is (i) a
direct obligation of the government that issued such currency for the
payment of which full faith and credit of such government is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality for such government the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
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such government, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Foreign Government Obligation which is
specified in Clause (x) and held by such bank for the account of the holder
of such depositary receipt, or with respect to any specific payment of
principal of or interest on any such Foreign Government Obligation which is
so specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the
custodian in respect of the Foreign Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
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(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior Indebtedness
becoming, and continuing to be, due and payable prior to the date on which
it would otherwise have become due and payable (unless payment of such
Senior Indebtedness has been made or duly provided for), and (C) no other
event of default with respect to any Senior Indebtedness shall have occurred
and be continuing permitting (after notice or lapse of time or both) the
holders of such Senior Indebtedness (or a trustee on behalf of such holders)
to declare such Senior Indebtedness due and payable prior to the date on
which it would otherwise have become due and payable.
(10 ) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations or Foreign Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 1304 in respect of any Securities 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 such 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 any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law. Money, U.S. Government Obligations and Foreign Government Obligations
so held in trust shall not be subject to the provisions of Article Fourteen.
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 or
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest
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received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article 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 that, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect the 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 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with 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.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
[To come]
-65-
<PAGE> 74
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.
FEDERAL-MOGUL CORPORATION
By................................................
Attest:
.................
CONTINENTAL BANK, NATIONAL ASSOCIATION, as Trustee
By................................................
Attest:
.................
-66-
<PAGE> 75
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On the .... day of ..........., 1993, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he/she is .................... of Federal-Mogul
Corporation, one of the corporations described in and which executed the
foregoing instrument; that he/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 he/she
signed his/her name thereto by like authority.
..........................
STATE OF ________ )
) ss.:
COUNTY OF ________ )
On the .... day of ..........., 1993, before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he/she is .................... of Continental Bank,
National Association, one of the corporations described in and which executed
the foregoing instrument; that he/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
he/she signed his/her name thereto by like authority.
..........................
-67-
<PAGE> 1
EXHIBIT 5.1
[Federal-Mogul Corporation Letterhead]
January __, 1994
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration Statement
on Form S-3 (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act")
for the registration of the sale by Federal-Mogul Corporation (the "Company"),
from time to time, of up to $300,000,000 maximum aggregate initial offering
price of Debt Securities, Preferred Stock, without par value ("Preferred
Stock"), depositary shares representing fractional interests in shares of
Preferred Stock ("Depositary Shares"), Common Stock, without par value,
including the Preferred Stock Purchase Rights attached thereto ("Common Stock"),
warrants to purchase Debt Securities ("Debt Warrants") or other types of
warrants to purchase Securities ("Other Warrants" together with the Debt
Warrants, the "Warrants"). The Debt Securities, the Preferred Stock, the
Depositary Shares, the Common Stock, and the Warrants are hereinafter referred
to collectively as the "Securities". Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Registration Statement.
The Debt Securities will constitute either senior or subordinated debt
of the Company and will be issued under, in the case of the senior Debt
Securities, an indenture to be between the Company and Continental Bank,
National Association, as trustee (the "Senior Debt Indenture"), and in the case
of the subordinated Debt Securities, an indenture to be between the Company and
Continental Bank, National Association, as trustee (the "Subordinated Debt
Indenture"). The Senior Debt Indenture and the Subordinated Debt Indenture are
hereinafter referred to collectively as the "Indentures".
Depositary Shares will be deposited under a Deposit Agreement between
the Company and a bank or trust company and evidenced by Depositary Receipts.
Debt Warrants and Other Warrants will be issued either independently or
together with other Securities and will
<PAGE> 2
Federal-Mogul Corporation
January __, 1994
Page 2
be issued pursuant to a Warrant Agreement between the Company and a bank or
trust company as Warrant Agent.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of
public officials, and other instruments as I have deemed necessary or advisable
for purposes of this opinion.
Based upon the foregoing, I am of the opinion that, except as limited
by (i) in the case of paragraphs 1 and 5, bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, (ii) in the case of paragraphs 1 and
5, general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), (iii) in the case of paragraph
1, requirements that a claim with respect to any Debt Securities denominated
other than in United States dollars (or a judgement denominated other than in
United States dollars with respect of such a claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, and (iv) in the case of paragraphs 1 and 5, governmental
authority to limit, delay, or prohibit the making of payments outside the
United States or in foreign currency or composite currency:
1. When the specific terms of a particular Debt Security
(including any Debt Security duly issued upon a conversion for any
other Debt Securities, the conversion or the exchange of any Preferred
Stock or upon exercise of any Warrants) and its issuance and sale have
been duly established in accordance with the Senior Indenture or the
Subordinated Indenture, as the case may be, and such Debt Security has
been duly executed and authenticated in accordance with the Senior
Indenture or Subordinated Indenture, as the case may be, and duly
issued and sold as contemplated by the Registration Statement and
applicable Prospectus Supplement or upon exchange, conversion or
exercise in accordance with the terms of any other Security that has
been validly issued, paid for and delivered, such Debt Security will
constitute the valid and binding obligation of the Company.
2. Upon designation of the preferences and relative,
participating, optional and other special rights, and qualifications,
limitations or restrictions, of any series of Preferred Stock (including
<PAGE> 3
Federal-Mogul Corporation
January _, 1994
Page 3
Preferred Stock duly issued upon conversion of any Debt Securities or
the conversion or exhange of any other Preferred Stock or upon
exercise of any Warrants) establishing terms for issuance and sale of
such Preferred Stock in conformity with the Company's Second Amended
and Restated Articles of Incorporation (the "Articles"), and upon
proper filing as required by the Michigan Business Corporation Act of a
Certificate of Designations relating to such series of Preferred Stock,
and when such shares of Preferred Stock are issued and sold as
contemplated by the Registration Statement and applicable Prospectus
Supplement or upon exchange, conversion or exercise in accordance with
the terms of any other Security that has been validly issued, paid for
and delivered, shares of such series of Preferred Stock will be validly
issued, fully paid and nonassessable.
3. When the terms of Depositary Shares evidenced by Depositary
Receipts are duly established and such Depositary Shares are
issued and sold, in each case, in accordance with the terms of the
Deposit Agreement against the deposit of validly issued, fully paid and
nonassessable shares of Preferred Stock, and when the Depositary
Shares as evidenced by Depositary Receipts are issued and sold as
contemplated by the Registration Statement and applicable Prospectus
Supplement, such Depositary Shares will entitle the persons in whose
names the Depositary Receipts evidencing such Depositary Shares are
registered to the rights specified therein and in the Deposit
Agreement.
4. When the terms of issuance and sale of such Common Stock (including
any Common Stock duly issued upon a conversion of any Debt
Securities or the conversion or exchange of any Preferred Stock, or
upon exercise of any Warrants) have been duly established in conformity
with the Company's Articles, and when such shares of Common Stock are
issued and sold as contemplated by the Registration Statement and
applicable Prospectus Supplement or upon exchange, conversion or
exercise in accordance with the terms of any other Security that has
been validly issued, paid for and delivered, such shares of Common
Stock will be validly issued, fully paid and nonassessable.
<PAGE> 4
Federal-Mogul Corporation
January __, 1994
Page 4
5. When the specific terms of a particular Warrant have been duly
established in conformity with the Warrant Agreement and such Warrant
has been duly executed and countersigned in accordance with the
Warrant Agreement and issued and sold in the applicable form to be
filed as an exhibit to the Registration Statement and as contemplated
by the Registration Statement and applicable Prospectus Supplement,
such Warrant will constitute the valid and binding obligation of the
Company.
In connection with my opinions expressed above, I have assumed that, at
or prior to the time of the delivery of any such Security, (i) the Board of
Directors, themselves or as so delegated, shall not have modified or rescinded
the duly authorized issuance and sale of such Security, (ii) the Registration
Statement shall have been declared effective and such effectiveness shall not
have been terminated or rescinded, (iii) with respect to paragraph 1, the
applicable Indentures shall have been duly authorized, executed and delivered
by the Company and the applicable Trustee, (iv) with respect to paragraph 3,
the applicable Deposit Agreement relating to the Depositary Shares shall have
been duly authorized, executed and delivered by the Company, (v) with respect
to paragraph 5, the Warrant Agreement relating to the Warrants to be filed as
an exhibit to the Registration Statement shall have been duly authorized,
executed and delivered by the Company, and (vi) there will not have occurred
any change in law affecting the validity or enforceability of such Security. I
have also assumed that none of the terms of any Security to be established
subsequent to the date hereof nor the issuance and sale of such Security, nor
the compliance by the Company with the terms of such Security, will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
I am a member of the Bar of the State of Michigan, and the foregoing
opinion is limited to the laws of the State of Michigan, and the federal laws
of the United States of America. In rendering my opinions, I have relied as to
matters of New York law upon the opinion of Wachtell, Lipton, Rosen & Katz
dated as of the date hereof.
I hereby consent to the use of this opinion as an Exhibit to the
Registration Statement of the Company relating
<PAGE> 5
Federal-Mogul Corporation
January __, 1994
Page 5
to the Securities and to the reference to my name in the Prospectus contained
therein. In giving such consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
<PAGE> 1
EXHIBIT 5.2
[WLRK Letterhead]
January _, 1994
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration Statement
on Form S-3 (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act")
for the registration of the sale by Federal-Mogul Corporation (the "Company"),
from time to time, of up to $300,000,000 maximum aggregate initial offering
price of Debt Securities, Preferred Stock, without par value ("Preferred
Stock"), depositary shares representing fractional interests in shares of
Preferred Stock ("Depositary Shares"), Common Stock, without par value,
including the Preferred Stock Purchase Rights attached thereto ("Common
Stock"), warrants to purchase Debt Securities ("Debt Warrants") or other types
of warrants to purchase Securities ("Other Warrants" together with the Debt
Warrants, the "Warrants"). The Debt Securities, the Preferred Stock, the
Depositary Shares, the Common Stock, and the Warrants are hereinafter referred
to collectively as the "Securities". Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Registration Statement.
The Debt Securities will constitute either senior or subordinated debt
of the Company and will be issued under, in the case of the senior Debt
Securities, an indenture to be between the Company and Continental Bank,
National Association, as trustee (the "Senior Debt Indenture"), and in the case
of
<PAGE> 2
Federal-Mogul Corporation
January __, 1994
Page 2
the subordinated Debt Securities, an indenture to be between the Company and
Continental Bank, National Association, as trustee (the "Subordinated Debt
Indenture"). The Senior Debt Indenture and the Subordinated Debt Indenture are
hereinafter referred to collectively as the "Indentures".
Depositary Shares will be deposited under a Deposit Agreement between
the Company and a bank or trust company and evidenced by Depositary Receipts.
Debt Warrants and Other Warrants will be issued either independently or
together with other Securities and will be issued pursuant to a Warrant
Agreement between the Company and a bank or trust company as Warrant Agent.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials, and other instruments as we have deemed necessary or
advisable for purposes of this opinion.
Based upon the foregoing, we are of the opinion that, except as limited
by (i) in the case of paragraphs 1 and 3, bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, (ii) in the case of paragraphs 1 and
3, general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), (iii) in the case of paragraph
1, requirements that a claim with respect to any Debt Securities denominated
other than in United States dollars (or a judgement denominated other than in
United States dollars with respect of such a claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, and (iv) in the case of paragraphs 1 and 3, governmental
authority to limit, delay, or prohibit the making of payments outside the
United States or in foreign currency or composite currency:
1. When the specific terms of a particular Debt Security
(including any Debt Security duly issued upon a conversion for any
other Debt Securities, the conversion or exchange of any shares of
Preferred Stock or upon exercise of any Warrants) and its issuance and
sale have been duly established in accordance with the Senior
Indenture or the Subordinated Indenture, as the case may be, and such
Debt Security has been duly executed and authenticated in accordance
with the Senior Indenture or Subordinated
<PAGE> 3
Federal-Mogul Corporation
January __, 1994
Page 3
Indenture, as the case may be, and duly issued and sold as
contemplated by the Registration Statement and applicable Prospectus
Supplement or upon exchange, conversion or exercise in accordance with
the terms of any other Security that has been validly issued, paid for
and delivered, such Debt Security will constitute the valid and
binding obligation of the Company.
2. When the terms of Depositary Shares evidenced by Depositary
Receipts are duly established and such Depositary Shares are issued
and sold, in each case, in accordance with the terms of the Deposit
Agreement against the deposit of validly issued, fully paid and
nonassessable shares of Preferred Stock, and when the Depositary
Shares as evidenced by Depositary Receipts are issued and sold as
contemplated by the Registration Statement and applicable Prospectus
Supplement, such Depositary Shares will entitle the persons in whose
names the Depositary Receipts evidencing such Depositary Shares are
registered to the rights specified therein and in the Deposit
Agreement.
3. When the specific terms of a particular Warrant have been duly
established in conformity with the Warrant Agreement and such Warrant
has been duly executed and countersigned in accordance with the
Warrant Agreement and issued and sold in the applicable form to be
filed as an exhibit to the Registration Statement and as
contemplated by the Registration Statement and applicable Prospectus
Supplement, such Warrant will constitute the valid and binding
obligation of the Company.
In connection with the opinions expressed above, we have assumed with
your consent that, at or prior to the time of the delivery of any such
Security, (i) the Board of Directors, themselves or as so delegated, shall not
have modified or rescinded the duly authorized issuance and sale of such
Security, (ii) the Registration Statement shall have been declared effective
and such effectiveness shall not have been terminated or rescinded, (iii) with
respect to paragraph 1, the applicable Trustee and the applicable Indentures
shall have been qualified under the Trust Indenture Act of 1939, as amended,
(iv) with respect to paragraphs 1 to 3, the Company (a) shall have full
<PAGE> 4
Federal-Mogul Corporation
January __, 1994
Page 4
power and authority to execute, deliver and perform the obligations set forth
in the applicable documents, (b) the applicable documents shall have been duly
authorized, executed and delivered by the Company and (c) the execution and
delivery of the applicable documents and the performance by the Company of its
obligations thereunder shall not have violated, breached or otherwise given
rise to a default under the terms or provisions of its charter documents and
bylaws or of any material contract, commitment or other obligation to which the
Company is a party and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
and (v) there will not have occurred any change in law affecting the validity
or enforceability of such Security. We have also assumed that none of the
terms of any Security to be established subsequent to the date hereof nor the
issuance and sale of such Security, nor the compliance by the Company with the
terms of such Security, will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then binding upon the
Company, or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
We are members of the Bar of the State of New York, and the foregoing
opinion is limited to the laws of the State of New York, and the federal laws
of the United States of America.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement of the Company relating to the Securities and to the
reference to our name in the Prospectus contained therein. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
----------------
CONTINENTAL BANK, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-0947896
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, 60697
ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
FEDERAL-MOGUL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-0533580
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
26555 NORTHWESTERN HIGHWAY 48034
SOUTHFIELD, MICHIGAN (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
SENIOR DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE
SECURITIES
ARE VOTING AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
OR NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- -------------- ------------ ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE
INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to securities
outstanding under this indenture. The trustee is not a trustee under
another indenture under which other securities of the obligor are
outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-40462.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
26747.
3. A copy of the authorization to exercise corporate trust powers,
incorporated herein by reference to Exhibit 3 of Amendment No. 1 to T-1;
Registration No. 2-51075.
4. A copy of the existing By-laws of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-43020.
5. Not applicable by virtue of response to Item 13.
4
<PAGE> 6
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of
Amendment No. 1 to T-1; Registration No. 2-51075.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
CONTINENTAL BANK, NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY
CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE
OF ILLINOIS, ON THE 24TH DAY OF DECEMBER, 1993.
CONTINENTAL BANK, NATIONAL
ASSOCIATION
/s/ G. M. CARROLL
By
-----------------------------------
G. M. Carroll
Vice President
5
<PAGE> 7
EXHIBIT 7
(OFFICIAL PUBLICATION)
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
(LOGO) CONTINENTAL BANK, NATIONAL ASSOCIATION
Charter No. 13639 National Bank Region No. 7
In the state of Illinois at the close of business on September 30, 1993
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS In Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin................. $ 1,790
Interest-bearing balances.......................................... 2,043
Securities........................................................... 1,534
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold................................................. 303
Securities purchased under agreements to resell.................... 1,011
Loans and lease financing receivables:
Loans and leases, net of unearned income................ $11,950
LESS: Allowance for loan and lease losses............... 350
LESS: Allocated transfer risk reserve................... 0
Loans and leases, net of unearned income, allowance and reserve.... 11,600
Assets held in trading accounts...................................... 1,565
Premises and fixed assets (including capitalized leases)............. 215
Other real estate owned.............................................. 131
Investments in unconsolidated subsidiaries and associated companies.. 0
Customers' liability to this bank on acceptances outstanding......... 110
Intangible assets.................................................... 1
Other assets......................................................... 1,226
-------
TOTAL ASSETS....................................................... $21,529
=======
LIABILITIES
Deposits:
In domestic offices................................................ $ 9,817
Noninterest-bearing..................................... $2,485
Interest-bearing........................................ 7,332
In foreign offices, Edge and Agreement subsidiaries, and IBFs........ 3,981
Noninterest-bearing..................................... $ 103
Interest-bearing........................................ 3,878
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased............................................ 688
Securities sold under agreements to repurchase..................... 584
Demand notes issued to the U.S. Treasury............................. 1,385
Other borrowed money................................................. 1,417
Mortgage indebtedness and obligations under capitalized leases....... 0
Bank's liability on acceptances executed and outstanding............. 110
Notes and debentures subordinated to deposits........................ 397
Other liabilities.................................................... 1,065
-------
TOTAL LIABILITIES.................................................. 19,444
-------
Limited-life preferred stock......................................... 0
EQUITY CAPITAL
Perpetual preferred stock............................................ 0
Common stock......................................................... 685
Surplus.............................................................. 827
Undivided profits and capital reserves............................... 578
LESS: Net unrealized loss on marketable equity securities.......... 0
Cumulative foreign currency translation adjustments.................. (5)
-------
TOTAL EQUITY CAPITAL............................................... 2,085
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL $21,529
=======
</TABLE>
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
JOHN J. HIGGINS
-------------------
Controller
November 10, 1993
<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
----------------
CONTINENTAL BANK, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-0947896
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, 60697
ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
FEDERAL-MOGUL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-0533580
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
26555 NORTHWESTERN HIGHWAY 48034
SOUTHFIELD, MICHIGAN (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
SUBORDINATED DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE
SECURITIES
ARE VOTING AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
OR NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- -------------- ------------ ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF DECEMBER 15, 1993
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE
INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to securities
outstanding under this indenture. The trustee is not a trustee under
another indenture under which other securities of the obligor are
outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-40462.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
26747.
3. A copy of the authorization to exercise corporate trust powers,
incorporated herein by reference to Exhibit 3 of Amendment No. 1 to T-1;
Registration No. 2-51075.
4. A copy of the existing By-laws of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-43020.
5. Not applicable by virtue of response to Item 13.
4
<PAGE> 6
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of
Amendment No. 1 to T-1; Registration No. 2-51075.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
CONTINENTAL BANK, NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY
CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE
OF ILLINOIS, ON THE 24TH DAY OF DECEMBER, 1993.
CONTINENTAL BANK, NATIONAL
ASSOCIATION
/s/ G. M. CARROLL
By
-----------------------------------
G. M. Carroll
Vice President
5
<PAGE> 7
EXHIBIT 7
(OFFICIAL PUBLICATION)
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
(LOGO) CONTINENTAL BANK, NATIONAL ASSOCIATION
Charter No. 13639 National Bank Region No. 7
In the state of Illinois at the close of business on September 30, 1993
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS In Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin................. $ 1,790
Interest-bearing balances.......................................... 2,043
Securities........................................................... 1,534
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold................................................. 303
Securities purchased under agreements to resell.................... 1,011
Loans and lease financing receivables:
Loans and leases, net of unearned income................ $11,950
LESS: Allowance for loan and lease losses............... 350
LESS: Allocated transfer risk reserve................... 0
Loans and leases, net of unearned income, allowance and reserve.... 11,600
Assets held in trading accounts...................................... 1,565
Premises and fixed assets (including capitalized leases)............. 215
Other real estate owned.............................................. 131
Investments in unconsolidated subsidiaries and associated companies.. 0
Customers' liability to this bank on acceptances outstanding......... 110
Intangible assets.................................................... 1
Other assets......................................................... 1,226
-------
TOTAL ASSETS....................................................... $21,529
=======
LIABILITIES
Deposits:
In domestic offices................................................ $ 9,817
Noninterest-bearing..................................... $2,485
Interest-bearing........................................ 7,332
In foreign offices, Edge and Agreement subsidiaries, and IBFs........ 3,981
Noninterest-bearing..................................... $ 103
Interest-bearing........................................ 3,878
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased............................................ 688
Securities sold under agreements to repurchase..................... 584
Demand notes issued to the U.S. Treasury............................. 1,385
Other borrowed money................................................. 1,417
Mortgage indebtedness and obligations under capitalized leases....... 0
Bank's liability on acceptances executed and outstanding............. 110
Notes and debentures subordinated to deposits........................ 397
Other liabilities.................................................... 1,065
-------
TOTAL LIABILITIES.................................................. 19,444
-------
Limited-life preferred stock......................................... 0
EQUITY CAPITAL
Perpetual preferred stock............................................ 0
Common stock......................................................... 685
Surplus.............................................................. 827
Undivided profits and capital reserves............................... 578
LESS: Net unrealized loss on marketable equity securities.......... 0
Cumulative foreign currency translation adjustments.................. (5)
-------
TOTAL EQUITY CAPITAL............................................... 2,085
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL $21,529
=======
</TABLE>
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
JOHN J. HIGGINS
-------------------
Controller
November 10, 1993
