SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: November 22, 1996
Date of earliest event report: November 22, 1996
Manor Care, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-8195 52-1200376
(State or other (Commission File (I.R.S. Employer
jurisdiction of incorporation) Number) Identification No.)
11555 Darnestown Road
Gaithersburg, Maryland 20878-3200
(Address of principal executive offices) (Zip Code)
(301) 979-4000
(Registrant's telephone number, including area code)
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Item 5. Other Events
Exhibits are filed herewith in connection with the Registration
Statement on Form S-3 (File No. 333-15775) filed by Manor Care, Inc. (the
"Company") with the Securities and Exchange Commission relating to the Company's
Debt Securities and the commencement of the Company's Medium-Term Note Program.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit 1.1 - Distribution Agreement dated November 22, 1996 between the
Company and Lehman Brothers Inc., Chase Securities Inc., Deutsche
Morgan Grenfell Inc., Dillon Read & Co. Inc., and NationsBanc
Capital Markets, Inc.
Exhibit 4.1 - Indenture dated November 22, 1996 between the Company and
The Chase Manhattan Bank providing for the issuance of Debt
Securities in Series.
Exhibit 4.2 - Form of Fixed Rate Medium-Term Note, Series A
Exhibit 4.3 - Form of Floating Rate Medium-Term Note, Series A
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MANOR CARE, INC.
(Registrant)
By: /s/ James H. Rempe
--------------------------
Name: James H. Rempe
Title: Senior Vice President
and Secretary
Date: November __, 1996
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Exhibit Index
Exhibit No.
Exhibit 1.1 - Distribution Agreement dated November 22, 1996 between the
Company and Lehman Brothers Inc., Chase Securities Inc., Deutsche
Morgan Grenfell Inc., Dillon Read & Co. Inc., and NationsBanc
Capital Markets, Inc.
Exhibit 4.1 - Indenture dated November 22, 1(a) 996 between the Company
and The Chase Manhattan Bank providing for the issuance of Debt
Securities in Series
Exhibit 4.2 - Form of Fixed Rate Medium-Term Note, Series A
Exhibit 4.3 - Form of Floating Rate Medium-Term Note, Series A
EXHIBIT 1.1
U.S. $250,000,000
MANOR CARE, INC.
MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
November 22, 1996
Lehman Brothers Inc.
Chase Securities Inc.
Deutsche Morgan Grenfell Inc.
Dillon, Read & Co. Inc.
NationsBanc Capital Markets, Inc.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Manor Care, Inc., a Delaware corporation (the "Company"), confirms its
agreement with each of you (individually, an "Agent" and collectively, the
"Agents") with respect to the issuance and sale by the Company of up to an
aggregate of $ 250,000,000 (or the equivalent in foreign currencies or currency
units) in gross proceeds of its Medium-Term Notes, Series A (the "Notes"). The
Notes are to be issued from time to time pursuant to an indenture, dated as of
November 22, 1996 (as it may be supplemented or amended from time to time, the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a) as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures referred to below. This Agreement shall only apply to sales
of the Notes and not to sales of any other securities or evidences of
indebtedness of the Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, and to designate and select additional agents in accordance with Section
2(a), the Company hereby (i) appoints each of the Agents as the agent of the
Company for the purpose of soliciting and receiving offers to purchase Notes
from the Company and (ii) agrees that whenever the Company determines to sell
Notes directly to an Agent as principal it will enter into a separate agreement
(each a "Purchase Agreement"). Each such Purchase Agreement, whether oral (and
confirmed in writing, which may be by facsimile transmission) or in writing,
shall be with respect to such information (as applicable) as specified in
Exhibit C hereto, relating to such sale in accordance with Section 2(e) hereof.
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SECTION 1. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Agent as
of the date hereof, as of the Closing Date (defined herein) and as of the times
referred to in Sections 6(a) and 6(b) hereof (the Closing Date and each such
time being hereinafter sometimes referred to as a "Representation Date"), as
follows:
(a) A registration statement on Form S-3 (Registration No. 333-15775)
with respect to the Notes (i) has been prepared by the Company in conformity
with the requirements of the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and Regulations")
of the U.S. Securities and Exchange Commission (the "Commission") thereunder,
(ii) has been filed by the Company with the Commission under the Securities Act
and (iii) has become effective under the Securities Act. As provided in Section
3(b), a prospectus supplement reflecting the terms of the Notes, the terms of
the offering thereof and the other matters set forth therein has been prepared
and will be filed pursuant to Rule 424 under the Securities Act. In addition, a
preliminary prospectus supplement reflecting the terms of the Notes, the terms
of the offering thereof, and the other matters set forth therein may also be
prepared and filed pursuant to Rule 424 under the Securities Act. Such
prospectus supplement, in the form filed pursuant to Rule 424, is herein
referred to as the "Prospectus Supplement", and any such preliminary prospectus
supplement in the form filed pursuant to Rule 424 is hereafter referred to as
the "Preliminary Prospectus Supplement". Any prospectus accompanied by a
Preliminary Prospectus Supplement is hereinafter referred to, collectively with
such Preliminary Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to in this Section 1(a), as amended at the time
of the applicable Representation Date, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement and the Pricing Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the documents filed by the Company with the Commission
pursuant to the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that are incorporated by reference therein. Any reference to any
amendment to the Registration Statement shall be deemed to refer to and include
any annual or interim report of the Company or other documents filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement. The Commission has not issued any order suspending the effectiveness
of the Registration Statement, and no stop-order has been initiated or
threatened by the Commission.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the requirements of
the Securities Act, the Exchange Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission under such acts 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
applicable Representation Date and at all times during each period during which,
in the opinion of counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Act (each a "Marketing Period"), the
Registration Statement and the Prospectus will conform in all material respects
to the requirements of the Securities Act, the Exchange Act, the Trust Indenture
Act and the Rules and Regulations, and none of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein not
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misleading, provided that the Company makes no representation or warranty as to
(i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (the "Form T-1") under the Trust Indenture Act of
the Trustee under the Indenture or (ii) information contained in or omitted from
the Registration Statement or the Prospectus or any such amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Agent specifically for inclusion therein.
(c) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and the Purchase Agreement (if any) and
perform its obligations hereunder and thereunder; each of this Agreement and the
Purchase Agreement (if any) has been duly authorized, executed and delivered by
the Company, constitutes the valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
(d) Neither the Company nor any of its "significant subsidiaries" (as
such term is defined in Regulation S-X of the Commission) is in violation of its
corporate charter or by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be material to the
Company or the Company and its significant subsidiaries, taken as a whole; the
execution, delivery and performance of this Agreement and each applicable
Purchase Agreement, if any, and compliance by the Company with the provisions of
the Indenture and the Notes will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its significant subsidiaries pursuant to the terms of, or
constitute a material default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of the
Company or any of its significant subsidiaries or any order, rule, or regulation
of any court or governmental agency having jurisdiction over the Company, any of
its significant subsidiaries or their respective properties; and except as
required by the Securities Act, the Trust Indenture Act and applicable state
securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency in the United States
(including any state regulatory agency having jurisdiction over the Company or
any of its significant subsidiaries), which has not been made or obtained, is
required for the execution, delivery and performance of this Agreement or each
applicable Purchase Agreement, if any, or compliance with the provisions of the
Indenture and the Notes by the Company.
(e) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or any adverse development which materially affects, the business, properties,
financial condition, results of operations of the Company and its significant
subsidiaries taken as a whole from the dates as of which information is given in
the Registration Statement and the Prospectus.
(f) The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due execution and delivery thereof by the Trustee,
constitutes a valid and binding agreement of the Company and is enforceable
against the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law); the Notes have been duly authorized by the Company, and, when the terms of
the Notes and of their issue and sale have been duly established in accordance
with the Indenture and this Agreement, and the Notes have been duly executed,
authenticated, issued and delivered against payment therefor as provided herein
and the Indenture, the Notes will be duly executed, duly
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authenticated, duly issued and delivered by the Company, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
Indenture and will be enforceable against the Company in accordance with their
terms and the terms of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or general equitable
principles (whether considered in a proceeding in equity or at law); and the
Notes and the Indenture will conform in all material respects to the
descriptions thereof contained in the Registration Statement and the Prospectus.
(g) The Company and each significant subsidiary of the Company (as
such term is defined in Regulation S-X or the Commission) has been duly
incorporated and is validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which its ownership of
property or the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its significant subsidiaries
taken as a whole, and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged.
(h) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding pending
or, to the knowledge of the Company, threatened against the Company or any of
its significant subsidiaries which might result in any material adverse change
in the business, properties, financial condition or results of operations of the
Company or of the Company and its subsidiaries taken as a whole, or which could
reasonably be expected to adversely affect the consummation of the transactions
contemplated hereby.
(i) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated herein,
the Company hereby appoints each of the Agents as one of the exclusive agents of
the Company (subject to the provisions of the following paragraph) for the
purpose of soliciting or receiving offers to purchase the Notes from the Company
by others. On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent agrees, as
one of the exclusive agents of the Company (subject to the provisions of the
following paragraph), to use its reasonable efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the Prospectus and
the related Prospectus Supplement.
The Company may, from time to time, solicit or accept offers to
purchase Notes otherwise than through one of the Agents; provided, however, that
so long as this Agreement shall remain in effect, the Company shall not, without
the prior written consent of each Agent, solicit or accept offers to purchase
Notes through any additional agent other than an Agent, unless such additional
agent becomes a party to this Agreement, or an agreement setting forth the same
commissions and otherwise containing terms and conditions that are substantially
the same as those then in effect under this Agreement; provided, further, that
the Company expressly reserves the right to sell Notes directly to investors, in
which case the Agents shall not receive any commission with respect to such
sale. Each Agent also may purchase Notes from the Company as principal for
purposes of resale, as more fully described in paragraph (e) of this Section.
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(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt of
at least one business day's prior written notice from the Company, the Agents
will forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed. For the purpose of this agreement, "business day" shall mean any day
which is not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Section
3(d) or 3(k) hereof, each Agent shall suspend its solicitation of offers to
purchase Notes until such time as the Company shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 3(d) or 3(k) and shall have advised such
Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in accordance with the schedule relating to the Notes set forth in
Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company. Each Agent
shall communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by it as an Agent. The Company shall have the sole right
to accept offers to purchase the Notes and may reject any such offer in whole or
in part. Each Agent shall have the right, in its discretion reasonably exercised
without advising the Company, to reject any offer to purchase the Notes received
by it, in whole or in part, and any such rejection shall not be deemed a breach
of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
In connection with the solicitation of offers to purchase Notes, the
Agents are not authorized to provide on behalf of the Company to any person any
written information relating to the Company other than the Prospectus and the
documents incorporated therein. No Note which the Company has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased and paid for
or sold by the Company until such Note shall have been delivered to the
purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance with
the terms of this Agreement and a Purchase Agreement whether oral (and confirmed
in writing by such Agent to the Company, which may be by facsimile transmission)
or in writing, which will provide for the sale of such Notes to, and the
purchase thereof by, such Agent. A Purchase Agreement may also specify certain
provisions relating to the reoffering of such Notes by such Agent. The
commitment of any Agent to purchase Notes from the Company as principal shall be
deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be
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subject to the terms and conditions herein set forth. Each Purchase Agreement
shall specify the principal amount and terms of the Notes to be purchased by an
Agent, the time and date (each such time and date being referred to herein as a
"Time of Delivery") and place of delivery of and payment for such Notes and such
other information (as applicable) as is set forth in Exhibit C hereto. The
Company agrees that if any Agent purchases Notes as principal for resale such
Agent shall receive such compensation, in the form of a discount or otherwise,
as shall be indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with Exhibit A
hereto. Any Agent may utilize a selling or dealer group in connection with the
resale of such Notes. In addition, the Agents may offer the Notes they have
purchased as principal to other dealers. Any Agent may sell Notes to any dealer
at a discount. Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers' certificates
pursuant to Section 5 hereof.
(f) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may
be amended in writing from time to time by the Agents and the Company. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such later time as
may be mutually agreed upon by the Company and the Agents, which in no event
shall be later than the time at which the Agents commence solicitation of offers
to purchase Notes hereunder (the "Closing Date").
SECTION 3. COVENANTS OF THE COMPANY
The Company agrees to furnish promptly to Simpson Thacher & Bartlett,
counsel for the Agents, one signed copy of the Registration Statement, including
all exhibits, in the form it became effective and of all amendments thereto and,
in connection with each offering of Notes, the Company further agrees:
(a) Delivery of Signed Registration Statement and Other Documents. To
deliver promptly to each Agent and counsel to the Agents such number of
conformed copies of the Registration Statement as originally filed and each
amendment thereto (in each case excluding exhibits other than the computation of
the ratio of earnings to fixed charges, the Indenture and this Agreement) and of
each Preliminary Prospectus, the Prospectus and any documents incorporated by
reference in the Preliminary Prospectus or Prospectus (excluding exhibits
thereto) and any amended or supplemented Prospectus, as each Agent and counsel
to the Agents may reasonably request;
(b) Commission Filings. To prepare a Prospectus Supplement relating to
the Notes in a form approved by the Agents and to file the Prospectus, including
the Prospectus Supplement and any Pricing Supplement, with the Commission
pursuant to the applicable provisions of Rule 424(b) of the Rules and
Regulations within the time period and, during any Marketing Period, (i) to file
any amendment to the Registration Statement or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Agents, be required
by the Securities Act or requested by the Commission, (ii) to file under the
Exchange Act any document incorporated by reference in the Prospectus that may,
in the reasonable judgment of the Company or the Agents, be required by the
Securities Act or requested by the
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Commission and (iii) to file promptly with the Commission all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus;
(c) Copies of Filings with Commission. Prior to filing with the
Commission during any Marketing Period any amendment to the Registration
Statement, supplement to the Prospectus, any document incorporated by reference
in the Prospectus, or to filing any Prospectus pursuant to Rule 424(b)(1),
(b)(3) or (b)(4) of the Rules and Regulations, to furnish a copy thereof to the
Agents and counsel for the Agents and obtain the consent of the Agents to the
filing;
(d) Notice to Agents of Certain Events. To advise the Agents and
counsel to the Agents promptly (i) when any post-effective amendment to the
Registration Statement becomes effective, (ii) of any request or proposed
request by the Commission for an amendment to the Registration Statement, a
supplement to the Prospectus or any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threat of any stop order proceeding,
(iv) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose, (v) of any downgrading
in the rating accorded the Notes or any other debt securities of the Company, or
any proposal to downgrade the rating of the Notes or any other debt securities
of the Company, by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, or of any public announcement that any such organization
has under surveillance or review, with possible negative implications, its
rating of the Notes or any of the Company's debt securities as soon as the
Company learns of such downgrading, proposal to downgrade or public announcement
and (vi) of the happening of any event which makes untrue any statement of a
material fact made in the Registration Statement or the Prospectus, or which
requires the making of a change in the Registration Statement or the Prospectus
in order to make any material statement therein not misleading;
(e) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus or Prospectuses,
or if the qualification of the Notes for sale in any jurisdiction shall be
suspended, to make every reasonable effort to obtain the lifting of that order
or suspension at the earliest possible time;
(f) Earnings Statements. As soon as practicable after the date of each
acceptance by the Company of an offer to purchase Notes hereunder, to make
generally available to its security holders and to the Agents an earning
statement of the Company and its subsidiaries, conforming with the requirements
of Section 11(a) of the Securities Act (including, at the option of the Company,
Rule 158), covering a period of at least 12 months beginning on the first day of
the first fiscal quarter of the Company commencing after the later of (i) the
effective date of the Registration Statement, (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such acceptance;
(g) Copies of Reports, Releases and Financial Statements. For a period
expiring on the earlier of (i) three years after the applicable Representation
Date, or (ii) the last date upon which any Note sold pursuant to this Agreement
are outstanding, provided that with respect to (ii) only, all of the Notes which
may be sold pursuant to this Agreement have been sold, to furnish to the Agents
copies of all public
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reports and all reports and financial statements furnished by the Company to the
principal national securities exchange or quotation system upon which its Common
Stock may be listed pursuant to the requirements of or agreements with such
exchange or system or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(h) Blue Sky Qualifications. Promptly from time to time to take such
action as the Agents may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided that in connection therewith,
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(i) Holdback. Between the date of any Purchase Agreement and the date
of delivery of the Notes with respect thereto, the Company will not offer or
sell, or enter into any agreement to sell, without the prior written consent of
each Agent which is party to such Purchase Agreement, any senior debt securities
of the Company, other than borrowings under the Company's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of its commercial paper;
(j) Use of Proceeds. To apply the net proceeds from the sale of the
Notes being sold by the Company as set forth in the Prospectus.
(k) Revisions to Prospectus - Material Changes. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made when the Prospectus was delivered, not misleading, or
if it is necessary at any time to amend any Prospectus to comply with the
Securities Act, to notify the Agents promptly, in writing, to suspend
solicitation of purchases of the Notes; and if the Company shall decide to amend
or supplement the Registration Statement or any Prospectus, to promptly advise
the Agents by telephone (with confirmation in writing) and to promptly, in
writing, prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance; provided, however, that if during the period referred to above any
Agent shall own any Notes which it has purchased from the Company as principal
with the intention of reselling them, the Company shall promptly prepare and
timely file with the Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Company or the
Agents, be required by the Securities Act or requested by the Commission.
(l) Pricing Supplement. To prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and to
file such Pricing Supplement pursuant to Rule 424 under the Securities Act with
the Commission, in each case, within the applicable time period prescribed for
such filing by the Rules and Regulations.
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SECTION 4. PAYMENT OF EXPENSES
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection,
(ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement and any amendments and exhibits
thereto,
(iii) the costs incident to the preparation, printing and filing of
any document and any amendments and exhibits thereto required to be filed by the
Company under the Exchange Act,
(iv) the reasonable costs of distributing the Registration Statement,
as originally filed, and each amendment and post-effective amendment thereof
(including exhibits), the basic prospectus included in the Registration
Statement, each Prospectus, any supplement or amendment to any Prospectus and
any documents incorporated by reference in any of the foregoing documents,
(v) the fees and disbursements of the Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed by the
Company, and their respective counsel,
(vi) the costs and fees in connection with the listing of the Notes on
any securities exchange,
(vii) the cost and fees in connection with any filings with the
National Association of Securities Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company,
(ix) the reasonable fees and disbursements of Counsel to the Agents in
an amount previously approved by the Company,
(x) the fees paid to rating agencies in connection with the rating of
the Notes,
(xi) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(h) hereof
and of preparing and printing a Blue Sky Memorandum (including fees and expenses
of counsel for the Company in connection therewith),
(xii) all advertising expenses in connection with the offering of the
Notes incurred with the consent of the Company, and
(xiii) all other costs and expenses arising out of the transactions
contemplated hereunder and incident to the performance of the Company's
obligations under this Agreement.
SECTION 5. Conditions of Obligations of Agent
The obligation of the Agents, as the agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any person
who has agreed to purchase Notes to make payment for and take delivery of Notes,
and the obligation of any Agent to purchase Notes pursuant to any
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10
Purchase Agreement, is subject to the accuracy, on each Representation Date, of
the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and Regulations
and in accordance with Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus shall have
been issued and no stop order proceeding shall have been initiated or threatened
by the Commission and no challenge shall have been made to the accuracy or
adequacy of any document incorporated by reference in any Prospectus; any
request of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have been complied
with.
(b) No Suspension of Sale of the Notes. No order suspending the sale
of the Notes in any jurisdiction designated by the Agents pursuant to Section
3(h) hereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened.
(c) No Material Omissions or Untrue Statements. No Agent shall have
discovered and disclosed to the Company that the Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of this
Agreement, the Notes, the Indenture, the form of the Registration Statement,
each Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Agents and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters, and counsel to the Agents shall have furnished the Agents their
favorable opinion with respect to such matters and such additional matters as
the Agents may reasonably request.
(e) Opinions of Company Counsel. At the Closing Date, the Agents shall
have received (1) the opinion, addressed to the Agents and dated the Closing
Date, of Cahill Gordon & Reindel, outside counsel to the Company, in form and
substance satisfactory to the Agents and their counsel, substantially to the
effect that:
(i) The Company has been duly incorporated and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority to own its properties and to conduct
its business as described in the Prospectus;
(ii) The Company has all necessary corporate power to execute and
deliver this Agreement and the Purchase Agreement (if any) and to perform
its obligations hereunder and thereunder;
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11
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and, when
executed by the Trustee, will constitute a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as
enforceability thereof may be limited by the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law);
(iv) The Notes have been duly authorized, and assuming due execution,
authentication and delivery of the Notes in accordance with the provisions
of the Indenture and delivery of and payment for the Notes in accordance
with this Agreement and the Purchase Agreement (if any), will constitute
valid and binding obligations of the Company, entitled to the benefits of
the Indenture, enforceable in accordance with their terms, except as
enforceability thereof may be limited by the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law);
(v) The Notes and the Indenture conform in all material respects to
the statements concerning them in the Registration Statement and the
Prospectus;
(vi) The Registration Statement, has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule
424(b) of the Rules and Regulations has been made within the time period
required by Rule 424(b) of the Rules and Regulations; and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or, to the knowledge of such
counsel, threatened by the Commission;
(vii) The Registration Statement, as of its effective date, and the
Registration Statement and the Prospectus, as of the date hereof (other
than the financial statements and related schedules and statistical
information of a financial nature contained in or incorporated therein, as
to which such counsel have not been asked to, and do not express any
opinion) comply as to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations thereunder, and any
further amendment or supplement to any such incorporated document made by
the Company prior to the Closing Date (other than the financial statements
and related schedules and statistical information of a financial nature
contained in or incorporated therein, as to which such counsel have not
been asked to, and do not express any opinion), when they became effective
complied as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and
(viii) Each of this Agreement and the Purchase Agreement (if any) has
been duly authorized, executed and delivered by the Company. The execution,
delivery and performance by the Company of this Agreement and the Purchase
Agreement (if any), and the compliance by the Company with the provisions
of the Indenture and the Notes, will not conflict with or result in a
violation of the corporate charter or by-laws of the Company, or any law,
rule or regulation (other than laws and regulations relating to hospitals
and nursing centers or the regulation of businesses ancillary thereto and
state securities laws, as to which such counsel have not been asked to, and
do not express any opinion) or to such counsel's knowledge without
independent investigation, conflict with or result in the violation of any
order or determination of any arbitrator, court or governmental agency
having jurisdiction over the Company or any of the Company's subsidiaries
the effect of which would be material and adverse to the Company and its
subsidiaries taken as a whole. Except as required by
<PAGE>
12
the Securities Act, the Exchange Act, the Trust Indenture Act or
applicable state or foreign securities laws and the National Association
of Securities Dealers, Inc. (as to which such counsel have not been asked
to, and do not express any opinion), no consent, approval, authorization
or order of, or filing or registration with, any court or governmental
agency in the United States, which has not been made or obtained, is
required for the execution, delivery and performance of this Agreement and
the Purchase Agreement (if any), and compliance with the provisions of the
Indenture and the Notes by the Company, except to the extent that failure
to make or maintain such consents, approvals, authorizations, orders or
filings, will not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware. Such counsel shall also have furnished to the Agents a statement,
addressed to the Agents, dated the Closing Date to the effect that (i) such
counsel has participated in conferences, by person or by telephone, with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company and representatives of the Agents
and the Agents' counsel, at which the contents of the Registration Statement and
Prospectus and related matters were discussed and acted as counsel to the
Company only in connection with the preparation of the Registration Statement;
such counsel did not participate in the preparation of the documents
incorporated by reference in the Registration Statement or the Prospectus
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act and did
not review them prior to their filing. Without passing upon or assuming any
responsibility for the accuracy, completeness, or fairness of the statements
contained in the Registration Statement and Prospectus, such counsel shall state
that based on the foregoing, (relying as to materiality to a large extent upon
the opinions of officers and other representatives of the Company) no facts have
come to the attention of such counsel which lead them to believe that at the
time that the Registration Statement became effective and at the Closing Date
the Registration Statement (other than the financial statements, related
schedules and statistical information of a financial nature contained or
incorporated therein, as to which such counsel are not called upon to express a
belief), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as of its date and at
the Closing Date, including any document incorporated by reference in the
Prospectus (other than the financial statements, related schedules and
statistical information of a financial nature contained or incorporated therein,
as to which such counsel are not called upon to express a belief), as amended
and supplemented, if applicable, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and
(2) The opinion, addressed to the Agents and dated the Closing Date, of James H.
Rempe, General Counsel of the Company, in form and substance satisfactory to the
Agents and their counsel, to the effect that:
(i) Each "significant subsidiary" of the Company (as such term is
defined in Regulation S-X) has been duly incorporated and is validly
existing and in good standing under the laws of its respective jurisdiction
of incorporation, is duly qualified to do business and is in good standing
as a foreign corporation in all jurisdictions in which its ownership of
property or the conduct of its business requires such qualification (except
where the failure so to qualify would not have a material adverse effect
upon the Company or the Company and its subsidiaries taken as a whole), and
has all power and authority necessary to own its properties and to conduct
the business in which it is engaged as described in the Prospectus except
to the extent that the failure to be so qualified or be
<PAGE>
13
in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and
(ii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed) with the
Commission, complied as to form in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations thereunder (except as to the financial statements
and schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need express no
opinion).
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of Maryland and the General Corporation Law of Delaware.
(f) Officers' Certificate. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, signed on
behalf of the Company by its President or any Vice-President of the Company and
by a principal financial or accounting officer of the Company, stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 hereof are true and correct as of the Closing Date; the Company
has complied with all its agreements contained herein; and the conditions
on its part to be fulfilled prior to the Closing Date set forth herein have
been fulfilled;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened; and
(iii) There has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries taken as a whole except as set forth or
contemplated by the Prospectus.
(g) Accountant's Letter. The Company shall have furnished to the
Agents on the Closing Date a letter of Arthur Andersen LLP, addressed jointly to
the Company and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, covering such specified financial statement items and
procedures as the Agents may reasonably request and in form and substance
reasonably satisfactory to the Agents.
(h) Additional Conditions. There shall not have occurred: (a) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations,
(b) any public announcement that any such organization has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities, (c) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, The American Stock
Exchange, the Chicago Board Options Exchange or the over-the-counter market or
the establishment of minimum prices on one or more of such exchanges or such
market by the Commission or such exchange or other regulatory body or
governmental authority having jurisdiction, (d) a banking moratorium declared by
United States federal or New York State authorities, (e) a declaration of a
national emergency or war by the United States, (f) any outbreak or escalation
in hostilities involving the United States or any material adverse change in
national or international political, financial or economic conditions, national
<PAGE>
14
or international equity markets or currency exchange rates or controls as to
make it, in the judgment of the Agents, inadvisable or impracticable to proceed
with the solicitation of offers to purchase Notes or the purchase of Notes from
the Company as principal pursuant to the applicable Purchase Agreement, as the
case may be, or (g)(i) the Company or any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
or (ii) since such date there shall have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as principal pursuant
to the applicable Purchase Agreement, as the case may be.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are substantially in the form set forth above
and, if not, or if no particular form is set forth above, only if they are in
form and substance reasonably satisfactory to counsel for the Agents.
SECTION 6. Additional Covenants of the Company.
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore given to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or such purchaser's agent of the Notes relating to
such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The Company agrees
that during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes or
the principal amount of Notes remaining to be sold or similar changes), each
time the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers' certificate under this
Section 6(b) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus, the Company shall submit to the Agents a
certificate, (i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment, supplement or filing
was not filed during a Marketing Period, as of the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(f) hereof which was last furnished to the
Agents are true and correct at the time of such amendment, supplement or filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time).
<PAGE>
15
(c) Subsequent Delivery of Legal Opinions. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Notes pursuant to such Purchase Agreement or the
Company files with the Commission any document incorporated by reference into
any Prospectus, the Company shall, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinion of General Counsel to the Company, addressed to
the Agents and dated the date of delivery of such opinion, in form satisfactory
to the Agents, to the same effect as the opinions referred to in Section 5(e)(1)
and 5(e)(2) hereof, but modified, as necessary, to relate to the Registration
Statement and each Prospectus as amended or supplemented to the time of delivery
of such opinion; provided, however, that in lieu of such opinion, such counsel
may furnish the Agents with a letter to the effect that the Agents may rely on
such prior opinion to the same extent as if it were dated the date of such
letter authorizing reliance (except that statements in such prior opinion shall
be deemed to relate to the Registration Statement and each Prospectus as amended
or supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company agrees
that during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus which contains additional financial information,
the Company shall cause Arthur Andersen LLP (or other independent accountants of
the Company acceptable to the Agents) to furnish the Agents, (i) concurrently
with such amendment, supplement, Time of Delivery relating to such sale or
filing or (ii) if such amendment, supplement, or filing was not filed during a
Marketing Period, on the first day of the next succeeding Marketing Period, a
letter, addressed jointly to the Company and the Agents and dated the date of
delivery of such letter, in form and substance reasonably satisfactory to the
Agents, to the same effect as the letter referred to in Section 5(g) hereof but
modified to relate to the Registration Statement and each Prospectus, as amended
and supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or any Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless there is contained
therein any other accounting, financial or statistical information that, in the
reasonable judgment of the Agents, should be covered by such letter, in which
event such letter shall also cover such other information.
(e) Opinions on Settlement Date. On any settlement date for the sale
of Notes, the Company shall, if requested by the Agent that solicited or
received the offer to purchase any Notes being delivered on such settlement
date, furnish such Agent with written opinions of counsel to the Company set
forth in Section 5(e) hereof, each dated such settlement date, in form
reasonably satisfactory to such Agent, to the effect set forth in Section 5(e)
hereof, but modified, as necessary, to relate to the Prospectus relating to the
Notes to be delivered on such settlement date; provided, however, that in lieu
of such opinions, such
<PAGE>
16
counsel may furnish the Agents with a letter to the effect that the Agents may
rely on such prior opinion to the same extent as if it were dated such
settlement date (except that statements in such prior opinion shall be deemed to
relate to the Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Notes), to
which that Agent or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, or the Registration Statement or
Prospectus as amended or supplemented, or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each Agent and
each such controlling person promptly upon demand for any legal and other
expenses reasonably incurred as incurred by that Agent or controlling person in
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment thereof or supplement
thereto, made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Agent specifically for inclusion
therein; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any Agent or any person
controlling an Agent on account of any loss, claim, damage, liability or action
arising from the sale of Notes to any person by that Agent if that Agent failed
to send or give a copy of the Prospectus (or the Prospectus as amended or
supplemented) to such person, if required by law so to have been delivered, at
or prior to the written confirmation of the sale of the Notes to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability, unless such failure
resulted from non-compliance by the Company with Section 3(a) hereof. For
purposes of the last proviso to the immediately preceding sentence, the term
"Prospectus" shall not be deemed to include the documents incorporated therein
by reference, and no Agent shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person other than a person to whom such
Agent had delivered such incorporated document or documents in response to a
written request therefor. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any Agent or any
controlling person of that Agent.
(b) Each Agent severally, and not jointly, shall indemnify and hold
harmless the Company, each of its directors (including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company), each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales
of the Notes), to which the Company, or any such director or officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
<PAGE>
17
is based upon, any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented, or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of that Agent specifically
for inclusion therein, and shall reimburse the Company, or any such director or
officer or controlling person promptly upon demand for any legal and other
expenses reasonably incurred by the Company or any such director or officer or
controlling person in investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition to
any liability which any Agent may otherwise have to the Company or any such
director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action (including any
governmental investigation), the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify each indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from its obligations hereunder, except to the extent
that the indemnifying party is materially prejudiced by such failure to notify,
or from any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
investigation, provided, however, that the Agents shall have the right to employ
counsel to represent the Agents and their respective controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Agents against the Company under this Section 7 if, in the
reasonable judgment of the Agents, it is advisable for the Agents and such
controlling persons to be represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the indemnifying
party. Except as provided above, it is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all such indemnified
parties. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiffs, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall be for
any reason unavailable or insufficient to hold the indemnified party harmless,
then each indemnifying party, with respect to its obligations as provided in
Section 7(a) or 7(b), shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the applicable Agent on the other
hand from the offering of the Notes, which were the subject of the claim for
indemnification or (ii) if the allocation
<PAGE>
18
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 applicable Agent on the other hand with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any Agent on the
other hand with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the sale of the Notes (before
deducting expenses) received by the Company bear to the total commissions
received by such Agent with respect to such offering. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the applicable Agent, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Agents
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the Agents
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d) and subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
through such Agent and distributed to the public (which were the subject of the
claim for indemnification) were offered to the public exceeds the amount of any
damages which such Agent has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase Notes from the Company pursuant to
this Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and accepted by the
Company but such Agent shall have no liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii), in
particular, pay to the Agents any commission to which they would be entitled in
connection with such sale.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE
DELIVERY
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Agents contained in this Agreement,
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any
<PAGE>
19
investigation made by or on behalf of any Agent or any person controlling such
Agent or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 10. Termination
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one business
day's written notice of such termination to the other parties hereto; provided,
however, if such terminating party is an Agent, such termination shall be
effective only with respect to such terminating party. If, at the time of a
termination, an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such Notes are
delivered. The provisions of Sections 2(c), 3(b), 3(f), 3(g), 4, 7, 8, 9 and 14
hereof shall survive any termination of this Agreement.
SECTION 11. SALES OF NOTES DENOMINATED IN A FOREIGN CURRENCY AND
INDEXED NOTES
If at any time the Company and any of the Agents shall determine to
issue and sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with respect
to which an index is used to determine the amounts of payments of principal and
any premium or interest, the Company and any such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed Note
Amendment," as the case may be) in the form attached hereto as Exhibit D. Such
amendment shall establish, as appropriate additions and modifications that shall
apply to the sales, whether offered on an agency or principal basis, of the
Notes covered thereby. The Agents are authorized to solicit offers to purchase
Notes with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, and the Company shall agree
to any sales of such Notes (whether offered on an agency or principal basis),
only in a minimum aggregate amount of $2,500,000.
SECTION 12. NOTICES
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by facsimile or any other standard form of
telecommunication. Notices to the Agents shall be directed to them as follows:
Lehman Brothers Inc., 3 World Financial Center, New York, New York 10285-1200,
Attention: Medium-Term Note Department, 12th Floor; Telephone No.: (212)
526-2040; Telecopy No.: 212-528-1718; Chase Securities Inc., 270 Park Avenue,
New York, New York 10017, Attention: Medium-Term Note Desk; Telephone No.: (212)
834-4421; Telecopy No.: 212-834-6170; Deutsche Morgan Grenfell Inc., 31 West
52nd Street, New York, New York 10019, Attention: Pamela Kendall; Telephone No.:
212-469-7228; Telecopy No.: 212-469-8172; Dillon, Read & Co. Inc., 535 Madison
Avenue, New York, New York 10022, Attention: Debt Syndicate Department;
Telephone No.: (212) 906-7529; Telecopy No.: 212-759-8639; NationsBanc Capital
Markets, Inc., 100 North Tryon Street; NC1-007-07-01, Charlotte, North Carolina
28255, Attention: Lynn McConnell; Telephone No.: (704) 386-6616; Telecopy No.:
704-388-9939; notices to the Company shall be directed to it as follows: Manor
Care, Inc., 11555 Darnestown Road, Gaithersburg, Maryland 20878-3200; Attention:
Secretary; Telephone No.: 301-979-4000; Telecopy No.: 301-979-4007.
<PAGE>
20
SECTION 13. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Agent within the meaning of Section 15 of the
Securities Act, and (b) the indemnity agreement of the Agents contained in
Section 7 hereof shall be deemed to be for the benefit of directors of the
Company (including any person who, with his or her consent is named in the
Registration Statement as about to become a director of the Company), officers
of the Company who have signed the Registration Statement and any person
controlling the Company. Nothing in this Agreement is intended or shall be
construed to give any person, other than the person referred to in this Section,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without giving effect to the principles of
choice of law). This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
SECTION 15. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
<PAGE>
21
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Manor Care, Inc.
By:/s/ James H. Rempe
------------------------------------
Name: James H. Rempe
Title: Vice President and
Secretary
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By:/s/ Jerry Wigdortz
--------------------------------
Title: Managing Director
CHASE SECURITIES INC.
By:/s/ Michael D. DiGiacomo
--------------------------------
Title: Vice President
DEUTSCHE MORGAN GRENFELL INC.
By:/s/ Andreas J. Dirnagl
--------------------------------
Title: Vice President
DILLON, READ & CO. INC.
By:/s/ Richard Leaman, III
--------------------------------
Title: Managing Director
NATIONSBANC CAPITAL MARKETS, INC.
By:/s/ Lynn T. McConnell
--------------------------------
Title: Director
<PAGE>
Exhibit A
MANOR CARE, INC.
MEDIUM-TERM NOTES, SERIES A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
==============================================================================
TERM COMMISSION RATE
- ------------------------------------------------------------------------------
9 months to less than 12 months 0.125%
- ------------------------------------------------------------------------------
12 months to less than 18 months 0.150%
- ------------------------------------------------------------------------------
18 months to less than 2 years 0.200%
- ------------------------------------------------------------------------------
2 years to less than 3 years 0.250%
- ------------------------------------------------------------------------------
3 years to less than 4 years 0.350%
- ------------------------------------------------------------------------------
4 years to less than 5 years 0.450%
- ------------------------------------------------------------------------------
5 years to less than 6 years 0.500%
- ------------------------------------------------------------------------------
6 years to less than 7 years 0.550%
- ------------------------------------------------------------------------------
7 years to less than 10 years 0.600%
- ------------------------------------------------------------------------------
10 years to less than 15 years 0.625%
- ------------------------------------------------------------------------------
15 years to less than 20 years 0.650%
- ------------------------------------------------------------------------------
20 years to 30 years 0.750%
==============================================================================
<PAGE>
Exhibit B
Manor Care, Inc.
Medium-Term Notes, Series A
Administrative Procedures
Medium-Term Notes, Series A, due from nine months to 30 years from
date of issue (the "Notes") may be offered on a continuing basis by Manor Care,
Inc. (the "Company"). Lehman Brothers Inc. and [name of co-agent], as agents
(each an "Agent" and collectively, the "Agents"), have each agreed to use their
reasonable best efforts to solicit offers to purchase the Notes. The Notes are
being sold pursuant to a Distribution Agreement between the Company and the
Agents dated November 22, 1996 (as it may be supplemented or amended from time
to time, the "Distribution Agreement") to which these administrative procedures
are attached as an exhibit. The Notes will be issued pursuant to an Indenture,
dated as of November 22, 1996 (as it may be amended or supplemented from time to
time, the "Indenture"), between the Company and [name of trustee], as trustee
(the "Trustee"). The Notes will rank equally with all other unsecured and
unsubordinated indebtedness of the Company and will have been registered with
the Securities and Exchange Commission (the "Commission"). Unless otherwise
noted, terms not defined herein shall have the same meanings as in the
Prospectus Supplement relating to the Notes (the "Prospectus") and in the
Distribution Agreement. Special administrative procedures for Multi-Currency
Notes and for Global Securities for Book-Entry Notes follow these administrative
procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Company will be performed by its Treasury
Department. Administrative procedures for the offering are explained below.
Registration
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented for
registration of transfer or exchange at the New York office of the Trustee's
designated agent.
Denominations
Unless otherwise indicated in the applicable Pricing Supplement, Notes
will be issued and payable in U.S. dollars in denominations of $1,000 and any
integral multiple thereof.
Interest Payments
Interest on Fixed Rate Notes and Floating Rate Notes (each as defined
in the Prospectus Supplement) shall accrue and be payable on terms specified in
the Prospectus Supplement and the applicable Pricing Supplement.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion reasonably
exercised without advising the Company, to reject any offers in whole or in
part.
<PAGE>
B-2
Settlement
The receipt of immediately available funds in U.S. Dollars by the
Company in The City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with respect
to such Note, constitute "Settlement." All offers accepted by the Company will
be settled from one to three Business Days from the date of acceptance by the
Company pursuant to the timetable for Settlement set forth below unless the
Company and the purchaser agree to Settlement on a later date; provided,
however, that the Company will so notify the Trustee of any such later date on
or before the Business Day immediately prior to the Settlement date.
Settlement Procedures for Certificated Notes
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company pursuant to the
Distribution Agreement. In the Event of the sale of a Multi-Currency Note or an
Indexed Note, additional or different Settlement details may be set forth in the
applicable Amendment to be entered into between the Agent and the Company
pursuant to the Distribution Agreement.
Settlement procedures with regard to each Certificated Note sold
through each Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address for
payment of principal and interest, if any.
3. Taxpayer identification number of the Registered Owner (if
available).
4. Principal amount of the Note (and, if multiple Notes are to
be issued, denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to elect payments
in a Specified Currency applies and if the Specified
Currency is not U.S. Dollars, the authorized denominations.
<PAGE>
B-3
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial Paper Rate)
ii) Initial Interest Rate iii) Spread or Spread
Multiplier, if any
iv) Interest Reset Dates, Interest Reset Period and
Interest Determination Dates
v) Index Maturity
vi) maximum and minimum interest rates, if any
vii) overdue rate, if any
(c) Indexed Notes
The applicable terms thereof
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent
Interest Periods, if any.
13. Extension Periods, if any, and Final Maturity Dates, if any.
14. The date on or after which the Notes are redeemable at the
option of the Company or repurchasable by the Company at the
option of the holder, and additional redemption or
repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon Settlement).
18. Whether such Certificated Note is issued at an original
issue discount ("OID"), and, if so, the total amount of OID,
the yield to maturity and the initial accrual period of OID.
19. Other provisions, if appropriate.
<PAGE>
B-4
B. The Company will confirm the above Settlement information to the
Trustee by telex or facsimile. If the Company rejects an offer, the Company
will promptly notify such Agent by telephone.
C. The Trustee will assign a Note number to the transaction and will
complete the first page of the preprinted 4-ply Note packet, the form of
which was previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such Agent will
acknowledge receipt of the Note by completing the yellow stub and returning
it to the Trustee.
E. Such Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S. dollars in
the amount of the principal amount of the Note, less the applicable
commission or discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Note. Such Agent will
deliver to the purchaser a copy of the most recent Prospectus applicable to
the Note with or prior to any written offer of Notes, delivery of the Note
and the confirmation and payment by the purchaser for the Note.
G. Such Agent will obtain the acknowledgement of receipt for the Note
and Prospectus by the purchaser through the purchaser's completion of the
blue stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
Settlement Procedures Timetable for Certificated Notes
For offers accepted by the Company, Settlement procedures "A" through
"H" set forth above shall be completed on or before the respective times set
forth below:
Settlement
Procedure Time (New York)
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to
Settlement date
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the
Settlement date
Failure
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company for
Settlement, such Agent will immediately notify the Trustee and the Company's
Treasurer by telephone, confirmed in writing, of such failure and
<PAGE>
B-5
return the Note to the Trustee. Upon the Trustee's receipt of the Note from the
Agent, the Company will promptly return to the Agent an amount of immediately
available funds in U.S. dollars equal to any amount previously transferred to
the Company in respect of the Note pursuant to advances made by the Agent. Such
returns will be made on the Settlement date, if possible, and in any event not
later than 12 noon (New York City time) on the Business Day following the
Settlement date. The Company will reimburse such Agent on an equitable basis for
its loss of the use of the funds during the period when the funds were credited
to the account of the Company. Upon receipt of the Note in respect of which the
default occurred, the Trustee will mark the Note "cancelled", make appropriate
entries in its records and deliver the Note to the Company with an appropriate
debit advice. Such Agent will not be entitled to any commission with respect to
any Note which the purchaser does not accept or make payment for.
Redemption
The Notes will be redeemable (if at all) prior to their Stated
Maturity on terms specified in the Prospectus Supplement and the applicable
Pricing Supplement.
Maturity
Notes will be paid at Maturity on terms specified in the Prospectus
Supplement and the applicable Pricing Supplement.
Procedures for Establishing the Terms of the Notes
The Company and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms and communicated with the Company, if the Company accepts an
offer to purchase Notes upon such terms, the Company will prepare a Pricing
Supplement, in the form previously approved by the Agents, reflecting the terms
of such Notes and, after approval from such Agent, will arrange to
electronically transmit for filing with the SEC under the EDGAR system a copy of
such Pricing Supplement (together with the Prospectus, if amended or
supplemented) and will supply an appropriate number of copies of the Prospectus,
as then amended or supplemented, together with such Pricing Supplement, to the
Agent who presented such offer. See "Delivery of Prospectus."
If the Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the Agents
will recommend and the Company will establish rates to be so "posted". Following
establishment of posted rates and prior to the filing described in the following
sentence, the Agents may only record indications of interest in purchasing Notes
at the posted rates. Once any Agent has recorded any indication of interest in
Notes at the posted rates and communicated with the Company, if the Company
plans to accept an offer at the posted rate, the Company will prepare a Pricing
Supplement reflecting such posted rates and, after approval from the Agents,
will arrange to electronically transmit for filing with the SEC under the EDGAR
system a copy of such Pricing Supplement (together with the Prospectus if
amended or supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Agent who presented such
offer. See "Delivery of Prospectus."
<PAGE>
B-6
Suspension of Solicitation; Amendment or Supplement
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there shall
be any orders outstanding which have not been settled, the Company will promptly
advise the Agents and the Trustee whether such orders may be settled and whether
copies of the Prospectus as theretofore amended and/or supplemented as in effect
at the time of the suspension may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility for such decision
and for any arrangements which may be made in the event that the Company
determines that such orders may not be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing Supplement,
must be delivered to a purchaser prior to or simultaneously with the earlier of
the delivery of (i) the written confirmation of a sale sent to a purchaser or
his agent and (ii) any Note purchased by such purchaser. The Company shall
ensure that the applicable Agent receives copies of the Prospectus and each
amendment or supplement thereto (including the applicable Pricing Supplement) in
such quantities and within such time limits as will enable such Agent to deliver
such confirmation or Note to a purchaser as contemplated by these procedures and
in compliance with the preceding sentence. Copies of Pricing Supplements should
be delivered to:
If to Lehman Brothers Inc.:
By facsimile delivery to:
Lehman Brothers Inc.
c/o ADP Prospectus
Services
536 Broad Hollow Road
Melville, New York 11747
Attention: Mike Ward
Telephone: (516) 249-7942
Facsimile: (516) 254-7106
with a copy by hand to:
Lehman Brothers Inc.
3 World Financial Center
9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: (212) 526-8400
<PAGE>
B-7
If to Chase Securities Inc.:
MTN Desk
270 Park Avenue
New York, New York 10017
Attention: Peter Todd
Telephone: (212) 834-4421
Facsimile: (212) 834-6170
If to Deutsch Morgan Grenfell Inc.:
c/o ADP Prospectus Services
536 Broad Hollow Road
Melville, New York 11747
Telephone: (516) 254-7107
Facsimile: (516) 254-7134
with a copy by hand to:
Deutsche Bank
Legal Department
31 West 52nd Street, 15th Floor
New York, New York 10019
Attention: Pamela Kendall
Telephone: (212) 469-7288
Facsimile: (212) 469-8172
If to Dillon, Read & Co., Inc.:
c/o Prospectus Department
535 Madison Avenue
New York, New York 10022
Telephone: (212) 906-7016
If to NationsBanc Capital Markets, Inc.:
NationsBank
Corporate Center
100 North Tryon Street; NC1-007-07-01
Charlotte, NC 28255
Attention: Lynn McConnell
Telephone: (704) 386-6616
Facsimile: (704) 388-9939
<PAGE>
B-8
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Company and such purchaser or a change in
posted rates not applicable to such purchaser, such purchaser shall not receive
the Prospectus as supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended or supplemented on the
date of delivery of the Prospectus. The Trustee will make all such deliveries
with respect to all Notes sold directly by the Company.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers, employees
and agents who have been authorized by the Trustee to authenticate Notes, but
the Agents will have no obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agents the amount and nature of
advertising, if any, that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the Company will be paid by the Company.
<PAGE>
B-9
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-Currency
Notes in addition to, and to the extent inconsistent therewith in replacement
of, the procedures and terms set forth above.
Denominations
The authorized denominations of any Multi-Currency Note will be the
amount of the Specified Currency for such Multi-Currency Note equivalent, at the
noon buying rate in the City of New York for cable transfers for such Specified
Currency (the "Market Exchange Rate") on the first Business Day in the City of
New York and the country issuing such currency (or in the case of ECUs,
Brussels) next preceding the date on which the Company accepts the offer to
purchase such Multi-Currency Note, to U.S.$100,000 (rounded down to an integral
multiple of 10,000 units of such Specified Currency) and any greater amount that
is an integral multiple of 10,000 units of such Specified Currency.
Currencies
Unless otherwise specified in the applicable Pricing Supplement,
payments of principal of (and premium, if any) and interest on all
Multi-Currency Notes will be made in the applicable Specified Currency,
provided, however, that payments of principal of (and premium, if any) and
interest on Multi- Currency Notes denominated in other than U.S dollars will
nevertheless be made in U.S. dollars (i) at the option of the Holders thereof
under the procedures described below and (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances beyond the
control of the Company as described below.
Payment of Principal and Interest
If so specified in the applicable Pricing Supplement, except as
provided in the next paragraph, payments of interest and principal (and premium,
if any) with respect to any Multi-Currency Note will be made in U.S. dollars if
the Holder of such Note on the relevant Regular Record Date or at Maturity, as
the case may be, has transmitted a written request for such payment in U.S.
dollars to the Trustee at its Corporate Trust Office in The City of New York on
or prior to such Regular Record Date or the date 15 days prior to Maturity, as
the case may be. Such request may be in writing (mailed or hand delivered) or by
cable, telex or other form or facsimile transmission. Any such request made with
respect to any Multi-Currency Note by a Holder will remain in effect with
respect to any further payments of interest and principal (and premium, if any)
with respect to such Multi-Currency Note payable to such Holder, unless such
request is revoked on or prior to the relevant Regular Record Date or the date
15 days prior to Maturity, as the case may be. Holders of Multi-Currency Notes
denominated in other than U.S. dollars whose Notes are registered in the name of
a broker or nominee should contact such broker or nominee to determine whether
and how an election to receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Multi-Currency
Note who elects to receive payments in U.S. dollars will be based on the highest
bid quotation in The City of New York received by the Currency Determination
Agent (as defined below) as of noon New York City time on the third Business Day
next preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Currency Determination Agent) for the
purchase by the quoting dealer
<PAGE>
B-10
of the Specified Currency for U.S. dollars for settlement on such payment date
in the aggregate amount of the Specified Currency payable to all Holders of
Multi-Currency Notes electing to receive U.S. dollar payments and at which the
applicable dealer commits to execute a contract. If three such bid quotations
are not available on the third Business Day preceding the date of payment of
principal (and premium, if any) or interest with respect to any such
Multi-Currency Note, such payment will be made in the Specified Currency. All
currency exchange costs associated with any payment in U.S. dollars on any such
Multi- Currency Note will be borne by the Holder thereof by deductions from such
payment. Unless otherwise provided in the applicable Pricing Supplement, the
Trustee will be the Currency Determination Agent (the "Currency Determination
Agent") with respect to the Multi-Currency Notes.
Payment Currency
If the principal of (and premium, if any) or interest on any
Multi-Currency Note is payable in any currency other than U.S. dollars and such
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Multi-Currency Notes by
making such payment in U.S. dollars on the basis of the Market Exchange Rate on
the last date such Specified Currency was available (the "Conversion Date"). Any
payment made under such circumstances in U.S. dollars where the required payment
is in other than U.S. dollars will not constitute an Event of Default under the
Indenture.
If payment in respect of a Note is required to be made in any currency
unit (e.g., ECU) and such currency unit is unavailable due to the imposition of
exchange controls or other circumstances beyond the Company's control, then all
payments in respect of such Multi-Currency Note shall be made in U.S. dollars
until such currency unit is again available. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the currency unit in
U.S. dollars, which shall be determined by the Company or its agent on the
following basis. The component currencies of the currency unit for this purpose
(the "Component Currencies") shall be the currency amounts that were components
of the currency unit as of the Conversion Date for such currency unit. The
equivalent of the currency unit in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component Currencies. The U.S.
dollar equivalent of each of the Component Currencies shall be determined by the
Company or such agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day prior to the
date on which the relevant payment is due and for each such Component Currency
that is unavailable, if any, as of the Conversion Date for such Component
Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion, if two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
Outstanding Multi-Currency Notes
For purposes of calculating the principal amount of any Multi-Currency
Note for any purpose under the Indenture, the principal amount of such
Multi-Currency Note at any time outstanding
<PAGE>
B-11
shall be deemed to be the U.S. dollar equivalent at the Market Exchange Rate,
determined as of the date of the original issuance of such Multi-Currency Note,
of the principal amount of such Multi-Currency Note.
Details for Settlement of Multi-Currency Notes
In addition to the Settlement information specified in "Settlement
Procedures" above, the Agents shall communicate to the Company in the manner set
forth in "Settlement Procedures" the following information:
1. Specified Currency.
2. Denominations.
3. Wire transfer and overseas bank account information (if holder
has elected payment in a Specified Currency).
Additional Obligations of the Company and the Agents
(a) The Company or its designated agent shall submit such reports or
information as may be required from time to time by applicable law,
regulations and guidelines promulgated by Japanese governmental and
regulatory authorities in respect of the issue and purchase of Notes
denominated in Japanese Yen.
(b) The Company acknowledges that the terms of Notes denominated in
Japanese Yen that will be issued will be limited to those which have been
recognized by Japanese authorities.
(c) Each Agent represents to and agrees with the Company that it will
not offer or sell any Note directly or indirectly in Japan or to residents
of Japan or for the benefit of any Japanese person (which term as used
herein means any person resident in Japan, including any corporation or
other entity organized under the laws of Japan) or to others for reoffering
or resale directly or indirectly in Japan or to any Japanese person during
the period of 90 days from the issue date of such Note (which Note is
denominated in Japanese Yen) or 180 days from the issue date of the Note
(which Note is a Dual Currency Note, Reverse Dual Currency Note or Optional
Dual Currency Note) and that thereafter it will not do so, except under
circumstances which will result in compliance with any applicable laws,
regulations and ministerial guidelines of Japan taken as a whole.
Furthermore, in connection with the issuance of Notes denominated in
Japanese Yen, the Company and you each agree to comply with all applicable
laws, regulations and guidelines as amended from time to time of the
Japanese governmental and regulatory authorities.
<PAGE>
B-12
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-- entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). An owner of a Book-Entry Note
will not be entitled to receive a certificate representing such Note. In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations from the
Company and the Trustee to DTC dated the date hereof and a Medium-Term Note
Certificate Agreement previously entered into between the Trustee and DTC and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). Except as otherwise set forth in this Exhibit B,
Book-Entry Notes will be issued in accordance with the administrative procedures
set forth below.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Fixed Rate
Book-Entry Notes, the Company will issue a single
Global Security in fully registered form without
coupons (a "Global Security") representing all of such
Notes that have the same Original Issue Date, interest
rate and Stated Maturity. Similarly, on any settlement
date for one or more Floating Rate Book-Entry Notes,
the Company will issue a single Global Security
representing all of such Notes that have the same
Original Issue Date, Interest Rate Basis, Initial
Interest Rate, Interest Payment Period, Interest
Payment Dates, Index Maturity, Spread or Spread
Multiplier, if any, minimum interest rate (if any),
maximum interest rate (if any), redemption provisions,
if any, and Stated Maturity. No Global Security will
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note or (iii)
any Multi-Currency or Indexed Note.
Identification
Numbers: The Company will arrange, on or prior to commencement
of a program for the offering of Book-Entry Notes, with
the CUSIP Service Bureau of Standard & Poor's Ratings
Group (the "CUSIP Service Bureau") for the reservation
of a series of CUSIP numbers (including tranche
numbers), consisting of approximately 900 CUSIP numbers
and relating to Global Securities representing the
Book-Entry Notes. The Trustee has or will obtain from
the CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and will deliver to the
Company and DTC such written list of 900 CUSIP numbers
of such series. The Trustee will assign CUSIP numbers
to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to Global Securities. The
Trustee will notify the Company at any time
<PAGE>
B-13
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and if it deems
necessary, the Company will reserve additional CUSIP
numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers the Trustee shall deliver such
additional CUSIP numbers to the Company and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
Register maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records
of such Participants or through the separate records of
such Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Consolidation and
Exchange: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed
Rate Book-Entry Notes having the same Original Issue
Date, interest rate and Stated Maturity and with
respect to which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having the
same Interest Rate Basis, Original Issue Date, Initial
Interest Rate, Interest Payment Dates, Index Maturity,
Spread or Spread Multiplier, if any, minimum interest
rate (if any), maximum interest rate (if any),
redemption provisions, if any, and Stated Maturity and
with respect to which interest has been paid to the
same date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at least
thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities
shall be exchanged for a single replacement Global
Security and (iii) a new CUSIP number, obtained from
the Company, to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send
to its participants (including the
<PAGE>
B-14
Trustee) a written reorganization notice to the effect
that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver
to the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will
no longer be valid. On the specified exchange date, the
Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number,
and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed the maximum
principal amount specified by DTC, one Global Security
will be authenticated and issued to represent such
maximum principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Denominations: Unless otherwise specified in the Prospectus Supplement
or the applicable Pricing Supplement, Book-Entry Notes
will be issued in principal amounts of $1,000 or any
integral multiple thereof.
Interest: Interest on each Book-Entry Note will accrue and be
payable on terms specified in the Prospectus Supplement
and the applicable Pricing Supplement. Standard &
Poor's Ratings Group will use the information received
in the pending deposit message described under
Settlement Procedure "C", below in order to include the
amount of any interest payable and certain other
information regarding the related Global Security in
the appropriate weekly bond report published by
Standard & Poor's Ratings Group.
Promptly after each Interest Determination Date for
Floating Rate Notes, the Company will notify the
Trustee, and the Trustee in turn will notify Standard &
Poor's Ratings Group, of the interest rates determined
on such Interest Determination Date.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each
Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will
confirm the amount payable on each Global Security on
such Interest
<PAGE>
B-15
Payment Date by reference to the daily bond reports
published by Standard & Poor's Ratings Group. The
Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (other than at Maturity), and the Trustee will pay
such amount to DTC at the times and in the manner set
forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal and
interest to be paid on each Global Security maturing in
the following month. The Company, the Trustee and DTC
will confirm the amounts of such principal and interest
payments with respect to each such Global Security on
or about the fifth Business Day preceding the Maturity
of such Global Security. The Company will pay to the
Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity. The Trustee will pay such amount to DTC
at the times and in the manner set forth below under
"Manner of Payment".
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Maturity shall be paid by the
Company to the Trustee in funds available for use by
the Trustee as of 9:30 A.M. (New York City time) on
such date. The Company will make such payment on such
Global Securities by instructing the Trustee to
withdraw funds from an account maintained by the
Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. For maturity,
redemption or any other principal payments: prior to 10
A.M. (New York City time) on such date or as soon as
possible thereafter, the Trustee will make such
payments to DTC in same day funds in accordance with
DTC's Same Day Funds Settlement Paying Agent Operating
Procedures. For interest payments: the Trustee will
make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will
allocate such payments to its participants in
accordance with its existing operating procedures.
Neither the Company (either as issuer or as Paying
Agent) nor the Trustee shall have any direct
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person
<PAGE>
B-16
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note which will be registered in the name of
the nominee of DTC (unless otherwise indicated in the
applicable Pricing Supplement, "Cede & Co.") sold by
the Company through an Agent, as agent, shall be as
follows:
A. Such Agent will advise the Company by telex or
facsimile of the following settlement information:
1. Principal amount of the Note (and, if
multiple Notes are to be issued,
denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency and whether the option to
elect payments in a Specified Currency
applies and if the Specified Currency is not
U.S. Dollars, the authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest
Reset Period and Interest
Determination Dates
v) Index Maturity
vi) maximum and minimum interest rates,
if any
<PAGE>
B-17
vii) overdue rate, if any
(c) Currency Indexed Notes
The applicable terms thereof
8. Interest Payment Date(s) and Regular Record
Dates.
9. Optional Interest Reset Dates, if any, and
Subsequent Interest Periods, if any.
10. Extension Periods, if any, and Final Maturity
Dates, if any.
11. The date on or after which the Notes are
redeemable at the option of the Company or
repurchasable by the Company at the option of
the holder, and additional redemption or
repurchase provisions, if any.
12. Amortization schedule, if any.
13. Wire transfer information, if applicable.
14. Agents Commission (to be paid in the form of
a discount from the proceeds remitted to the
Company upon Settlement).
15. Whether such Book-Entry Note is issued at an
original issue discount ("OID"), and, if so,
the total amount of OID, the yield to
maturity and the initial accrual period of
OID.
B. The Company will advise the Trustee by electronic
transmission of the information set forth in
Settlement Procedure "All above and the name of
such Agent. Each such communication by the Company
shall constitute a representation and warranty by
the Company to the Trustee and each Agent that (i)
such Note is then, and at the time of issuance and
sale thereof will be, duly authorized for issuance
and sale by the Company, (ii) such Note, and the
Global Security representing such Note, will
conform with the terms of the Indenture and (iii)
upon authentication and delivery of such Global
Security, the aggregate initial offering price of
all Notes issued under the Indenture will not
exceed the maximum aggregate amount then
authorized (except for Book-Entry Notes
represented by Global Securities authenticated and
delivered in exchange
<PAGE>
B-18
for or in lieu of Global Securities pursuant to
the Indenture and except for Certificated Notes
authenticated and delivered upon registration of
transfer of, in exchange for, or in lieu of
Certificated Notes pursuant to any such Section).
C. The Trustee will assign a CUSIP number to the
Global Security representing such Note and enter a
pending deposit message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, such Agent and
Standard & Poor's Ratings Group:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related "DTC Regular Record Date" (which
term means the Regular Record Date except in
the case of floating rate notes which reset
daily or weekly in which case it means the
date 5 calendar days immediately preceding
the Interest Payment Date) and amount of
interest payable on such Interest Payment
Date per $1,000 of principal amount of such
Note.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security
representing such Note.
6. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
D. Such Agent will deliver to the purchaser a copy of
the most recent Prospectus applicable to the Note
with or prior to any written offer of Notes and
the confirmation and payment by the purchaser of
the Note.
Such Agent will confirm the purchase of such Note
to the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
<PAGE>
B-19
E. The Trustee, as Trustee, will complete and
authenticate the note certificate evidencing the
Global Security representing such Book-Entry Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note
to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal
to the price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty by
the Trustee to DTC that (i) the Global Security
representing such Book-Entry Note has been issued
and authenticated and (ii) the Trustee is holding
such Global Security pursuant to the Medium-Term
Note Certificate Agreement between the Trustee and
DTC (the "Certificate Agreement").
H. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for an
amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement
date.
J. The Trustee will credit to an account of the
Company maintained at the Trustee funds available
for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure
"G".
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent,
as agent, and accepted by the Company for settlement,
Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
<PAGE>
B-20
Settlement.
Procedure Time
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before Settlement
date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M. on Settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12 Noon and 2:00 P.M., as the
case may be, on the first Business Day after the sale
date. If the initial interest rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the second
Business Day before the Settlement date. Settlement
Procedure "J" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating
procedures in effect on the Settlement date.
If Settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on
the Business Day immediately preceding the scheduled
Settlement date.
Failure to Settle: If the Trustee has not entered an SDFS
deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", then, upon
written request (which may be effected by facsimile
transmission) of the Company, the Trustee shall deliver
to DTC, through DTC's Participant Terminal System, as
soon as practicable but no later than 2:00 P.M. on any
Business Day, a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that
the Trustee's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-- Entry Notes represented by a
Global Security, the Trustee will
<PAGE>
B-21
mark such Global Security "canceled", make appropriate
entries in the Trustee's records and send such canceled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance
with CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which shall
represent the other Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a Person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
debiting such Book-Entry Note free to such Agent's
participant account and crediting such Book-Entry Note
free to the participant account of the Trustee and
shall notify the Trustee and the Company thereof.
Thereafter, the Trustee (i) will immediately notify the
Company, once the Trustee has confirmed that such
Book-Entry Note has been credited to its participant
account, and the Company shall immediately transfer by
Fed wire (immediately available funds) to such Agent an
amount equal to the amount with respect to such
Book-Entry Note which was previously sent by wire
transfer to the account of the Company in accordance
with Settlement Procedure "J", and (ii) the Trustee
will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
Such debits and credits will be made on the Settlement
date, if possible, and in any event not later than 5:00
P.M. on the following Business Day. If such failure
shall have occurred for any reason other than a default
by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then
the Company will reimburse the Agent on an equitable
basis for the loss of the use of the funds during the
period when they were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a
<PAGE>
B-22
Global Security, the Trustee will provide, in
accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in connection
with any payment to the Company, DTC, the Agents, or
the purchaser, it being understood by all parties that
payments made by the Trustee to the Company, DTC, the
Agents, or the purchaser shall be made only to such
extent that funds are provided to the Trustee for such
purpose. Similarly, nothing herein shall alter any
duty, or limit or diminish any right or immunity, of
the Trustee under the Indenture.
<PAGE>
B-23
PURCHASE AGREEMENT
Manor Care, Inc. _______________, 19__
10570 Columbia Pike
Silver Spring, Maryland 20901
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of
the Notes described in the Distribution Agreement dated November 22, 1996 (as it
may be supplemented or amended from time to time, the "Distribution Agreement"):
Principal Amount [$] ______________________________
Specified Currency: ______________________________
Indexed Currency: ______________________________
Interest Rate: ________%
Discount: ________% of Principal Amount
Aggregate Price to be
paid to Company
(in immediately
available funds): [$] ______________________________
Settlement Date: ______________________________
Other Terms: ______________________________
In the case of Notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer of the Specified Currency for U.S.
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes denominated in such Specified
Currency electing to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including, without limitation, your obligations
pursuant to Section 6 and Section 7 thereof. Our obligation hereunder is subject
to the conditions set forth in Section 5 of the Distribution Agreement and to
the further condition that we shall receive (a) the opinions required to be
delivered pursuant to Section 5(e) of the Distribution Agreement, (b) the
certificate required to be delivered pursuant to Section 5(f) of the
Distribution Agreement, (c) the letter referred to in Section 5(g), in each case
dated as of the above Settlement Date and (d) and such further information,
certificates and documents as the Agents or counsel to the Agents may reasonably
request.
<PAGE>
C-2
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the Company,
other than borrowings under your revolving credit agreements and lines of
credit, the private placement of securities and issuances of your commercial
paper or other issuances of Notes.
We may terminate this Agreement, in our absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities, if prior to that time (a) a downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations, (b) any such
organization shall have publicly announced that is has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities, (c) trading in securities generally on the New York Stock
Exchange, The American Stock Exchange, the Chicago Board Options Exchange or the
over-the-counter market shall have been suspended or materially limited or
minimum prices shall have been established on one or more of such exchanges or
such market by the Commission or such exchange or other regulatory body or
governmental authority having jurisdiction, (d) a banking moratorium shall have
been declared by United States federal or New York State authorities, (e) the
United States shall have become engaged in major hostilities or there shall have
been an escalation in major hostilities involving the United States or a
declaration of a national emergency or war shall have been made by the United
States, (f) there shall have been such a material adverse change in national or
international political, financial or economic conditions, national or
international equity markets or currency exchange rates or controls as to make
it, in the judgment of the Agents, inadvisable or impracticable to proceed with
the payment for and delivery of the Notes, or (g)(i) the Company or any of its
subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Agents, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes on the
terms and in the manner contemplated in the Prospectus.
<PAGE>
C-3
This Agreement shall be governed by and construed in accordance with
the laws of New York.
By _________________________
[Title]
Accepted: 19__
Manor Care, Inc.
By _________________________
[Title]
<PAGE>
Exhibit D
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ____________ TO DISTRIBUTION AGREEMENT,
DATED NOVEMBER 22, 1996, AS AMENDED
[Insert Title of Foreign Currency and, in the case of Indexed Notes, the
Indexed Basis]
The undersigned hereby agree that for the purposes of the issue and
sale of Notes denominated in [title of currency or currency unit] (the
"Specified Currency") (and indexed to [title of index basis] (the "Index
Basis")] pursuant to the Distribution Agreement, dated November 22, 1996 as it
may be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Specified Currency [and
indexed to the Index Basis], whether offered on an agency or principal basis,
but shall be of no effect with respect to Notes denominated in any currency or
currency unit other than the Specified Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement. The term[s] Agent [or Agents], as used in the
Distribution Agreement, shall be deemed to refer [only] to the undersigned
Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
_______________, 19__
Manor Care, Inc.
By_________________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering of Notes in the
Specified Currency]
By_________________________
Name:
Title:
Exhibit 4.1
================================================================================
MANOR CARE, INC.
and
THE CHASE MANHATTAN BANK
as Trustee
--------------------
INDENTURE
Dated as of November 22, 1996
--------------------
Providing for the Issuance of
Debt Securities in Series
================================================================================
<PAGE>
MANOR CARE, INC.
Reconciliation and Tie Between Trust Indenture Act of 1939 and Indenture
Provisions*
Trust Indenture
Act Section Indenture Section
----------- -----------------
ss. 310(a)(1) ........................................ 709
(a)(2) ........................................ 709
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(b) ........................................ 708
........................................ 710
ss. 311(a) ........................................ 713(a)
713(c)
(b) ........................................ 713(b)
(b)(2) ........................................ 803(a)(2)
........................................ 803(b)
ss. 312(a) ........................................ 801
802(a)
(b) ........................................ 802(b)
(c) ........................................ 802(c)
ss. 313(a) ........................................ 803(a)
(b) ........................................ 803(b)
(c) ........................................ 803(d)
(d) ........................................ 803(c)
ss. 314(a) ........................................ 804
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
ss. 315(a) ........................................ 701(a)
(b) ........................................ 702
803(a)(6)
(c) ........................................ 701(b)
(d) ........................................ 701(c)
(d)(1) ........................................ 701(a)
(d)(2) ........................................ 701(c)(2)
(d)(3) ........................................ 701(c)(3)
- --------
* This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Trust Indenture
Act Section Indenture Section
----------- -----------------
(e) ....................................... 614
ss. 316(a) ....................................... 101
(a)(1)(A) ....................................... 602
612
(a)(1)(B) ....................................... 613
(a)(2) ....................................... Not Applicable
(b) ....................................... 608
ss. 317(a)(1) ....................................... 603
(a)(2) ....................................... 604
(b) ....................................... 1103
ss. 318(a) ....................................... 107
<PAGE>
TABLE OF CONTENTS(1)
Page
ARTICLE ONE
Definitions and Other Provisions of General Application............ 1
SECTION 101. Definitions.................................................. 1
SECTION 102. Compliance Certificates and Opinions......................... 12
SECTION 103. Form of Documents Delivered to Trustee....................... 12
SECTION 104. Acts of Holders. ............................................ 13
SECTION 105. Notices, etc. to Trustee and Company......................... 14
SECTION 106. Notice to Holders; Waiver.................................... 15
SECTION 107. Conflict with Trust Indenture Act............................ 16
SECTION 108. Effect of Headings and Table of Contents..................... 16
SECTION 109. Successors and Assigns....................................... 16
SECTION 110. Separability Clause.......................................... 16
SECTION 111. Benefits of Indenture........................................ 16
SECTION 112. Governing Law................................................ 17
SECTION 113. Legal Holidays............................................... 17
SECTION 114. Moneys of Different Currencies To Be Segregated.............. 17
SECTION 115. Payment To Be in Proper Currency............................. 17
SECTION 116. Language of Notices, etc..................................... 17
SECTION 117. Changes in Exhibits.......................................... 18
ARTICLE TWO
Issuance of Securities............................................. 18
SECTION 201. Creation of Securities in Amount Unlimited................... 18
SECTION 202. Documents Required for Issuance of Each Series of Securities
Other than Medium-Term Debt Securities..................... 18
SECTION 203. Form of Securities Other than Medium-Term Debt Securities.... 23
ARTICLE THREE
Issuance of Medium-Term Debt Securities............................. 23
SECTION 301. Documents Required for Issuance of Each Series of
Medium-Term Debt Securities................................. 23
SECTION 302. Form of Medium-Term Debt Securities........................... 25
- --------
1 This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
-i-
<PAGE>
Page
ARTICLE FOUR
The Securities...................................................... 25
SECTION 401. Form and Denomination......................................... 25
SECTION 402. Execution, Delivery, Dating and Authentication................ 26
SECTION 403. Temporary Securities.......................................... 28
SECTION 404. Registration, Registration of Transfer and Exchange........... 30
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities.............. 33
SECTION 406. Payment of Interest; Interest Rights Preserved................ 34
SECTION 407. Persons Deemed Owners......................................... 35
SECTION 408. Cancellation.................................................. 36
SECTION 409. Computation of Interest....................................... 36
SECTION 410. Currency and Manner of Payment in Respect of Securities....... 36
SECTION 411. Securities in Global Form..................................... 42
SECTION 412. Registered Global Notes....................................... 43
ARTICLE FIVE
Satisfaction and Discharge.......................................... 45
SECTION 501. Termination of Company's Obligations.......................... 45
SECTION 502. Application of Trust Money.................................... 46
SECTION 503. Repayment to Company.......................................... 46
SECTION 504. Reinstatement................................................. 46
SECTION 505. Definitions................................................... 46
ARTICLE SIX
Remedies............................................................ 47
SECTION 601. Events of Default............................................. 47
SECTION 602. Acceleration.................................................. 49
SECTION 603. Other Remedies................................................ 49
SECTION 604. Waiver of Existing Defaults................................... 50
SECTION 605. Control by Majority........................................... 50
SECTION 606. Limitation on Suits........................................... 50
SECTION 607. Rights of Holders To Receive Payments......................... 51
SECTION 608. Collection Suit by Trustee.................................... 51
SECTION 609. Trustee May File Proofs of Claim.............................. 51
SECTION 610. Priorities.................................................... 51
SECTION 611. Undertaking for Costs......................................... 51
SECTION 612. Restoration of Rights and Remedies............................ 52
SECTION 613. Waiver of Stay or Extension Laws.............................. 52
-ii-
<PAGE>
Page
ARTICLE SEVEN
The Trustee................................................. 52
SECTION 701. Duties of Trustee........................................... 52
SECTION 702. Rights of Trustee........................................... 53
SECTION 703. Individual Rights of Trustee................................ 54
SECTION 704. Trustee's Disclaimer........................................ 54
SECTION 705. Notice of Defaults.......................................... 54
SECTION 706. Reports by Trustee to Holders............................... 54
SECTION 707. Compensation and Indemnity.................................. 55
SECTION 708. Replacement of Trustee...................................... 55
SECTION 709. Successor Trustee by Merger, etc............................ 56
SECTION 710. Eligibility; Disqualification............................... 56
SECTION 711. Preferential Collection of Claims Against Company........... 57
SECTION 712. Judgment Currency........................................... 57
SECTION 713. Appointment of Authenticating Agent......................... 58
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company........... 60
SECTION 801. Communication by Holders with Other Holders................. 60
SECTION 802. Reports by Trustee.......................................... 60
SECTION 803. Reports by Company.......................................... 60
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer............... 60
SECTION 901. Company May Consolidate, etc., Only on Certain Terms........ 60
SECTION 902. Successor Corporation Substituted........................... 61
ARTICLE TEN
Supplemental Indentures..................................... 61
SECTION 1001. Supplemental Indentures Without Consent of Holders.......... 61
SECTION 1002. Supplemental Indentures with Consent of Holders............. 62
SECTION 1003. Execution of Supplemental Indentures........................ 64
SECTION 1004. Effect of Supplemental Indentures........................... 64
SECTION 1005. Conformity with Trust Indenture Act......................... 64
SECTION 1006. Reference in Securities to Supplemental Indentures.......... 64
ARTICLE ELEVEN
Covenants................................................... 65
SECTION 1101. Payment of Principal, Premium and Interest.................. 65
SECTION 1102. Maintenance of Office or Agency............................. 65
-iii-
<PAGE>
Page
SECTION 1103. Money for Securities Payments To Be Held in Trust........... 66
SECTION 1104. Restrictions on Secured Debt................................ 67
SECTION 1105. Restrictions on Sale and Leaseback Transactions............. 69
SECTION 1106. Limitation on Affiliate Transactions........................ 70
SECTION 1107. Statement by Officers as to Default......................... 70
SECTION 1108. Waiver of Certain Covenants................................. 71
SECTION 1109. Additional Amounts.......................................... 71
ARTICLE TWELVE
Redemption of Securities.................................... 72
SECTION 1201. Applicability of Article.................................... 72
SECTION 1202. Election To Redeem; Notice to Trustee....................... 72
SECTION 1203. Selection by Trustee of Securities To Be Redeemed........... 72
SECTION 1204. Notice of Redemption........................................ 73
SECTION 1205. Deposit of Redemption Price................................. 73
SECTION 1206. Securities Payable on Redemption Date....................... 73
SECTION 1207. Securities Redeemed in Part................................. 74
ARTICLE THIRTEEN
Sinking Funds............................................... 75
SECTION 1301. Applicability of Article.................................... 75
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities....... 75
SECTION 1303. Redemption of Securities for Sinking Fund................... 75
-iv-
<PAGE>
EXHIBIT A Form of Debt Securities
EXHIBIT B.1 Form of Certificate to be given by Person entitled to received
Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euro-clear and CEDEL S.A. in
connection with the Exchange of a portion of Temporary Global
Security
EXHIBIT B.3 Form of Certificate to be given by Euro-clear and CEDEL S.A. to
obtain Interest prior to an Exchange Date
EXHIBIT B.4 Form of Certificate to be given by Beneficial Owners to obtain
Interest prior to an Exchange Date
EXHIBIT B.5 Form of Confirmation to be sent to Purchasers of Bearer
Securities
-v-
<PAGE>
INDENTURE dated as of November 22, 1996, between MANOR CARE, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 11555 Darnestown
Road, Gaithersburg, Maryland 20878-3200, and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee"), the office of the Trustee at which at the
date hereof its corporate trust business is principally administered being 450
W. 33rd Street, New York, New York 10001-2697.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided,
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
<PAGE>
2
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally within an Article of this Indenture,
may be defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 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.
"Affiliate Transaction" has the meaning specified in Section 1106.
"Applicable Percentage" means (i) 15%, if the aggregate principal
amount of Securities then Outstanding exceeds $100,000,000, (ii) 20%, if the
aggregate principal amount of Securities then Outstanding exceeds $50,000,000
but is less than or equal to $100,000,000 or (iii) 25%, if the aggregate
principal amount of Securities Outstanding is less than or equal to $50,000,000.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the lesser of (i) the fair value of the property subject to
such lease (as determined in good faith by the chief financial or accounting
officer of the Company) and (ii) the total net amount of rent required to be
paid by such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the weighted
average interest borne by the particular series of Securities compounded
annually. The net amount of rent required to be paid under any such lease for
any such period shall be the aggregate amount of the rent payable by the lessee
with respect to such period after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 713 to act on behalf of the Trustee to authenticate
Securities of one or more series.
<PAGE>
3
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the
Company, any officer of the Company duly authorized to act in the name of or on
behalf of that board or any committee consisting of one or more persons, who
need not be directors, duly authorized to act in the name of or on behalf of
that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day", when used with respect to any Place of Payment or
place of publication, means each day on which commercial banks and foreign
exchange markets settle payments in such Place of Payment or place of
publication, or as otherwise specified for a series of Securities pursuant to
Section 202 or Section 301, as the case may be. Unless otherwise specified for a
series of Securities pursuant to Section 202 or Section 301, as the case may be,
when used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered notes for deposits in U.S.
Dollars, "Business Day" shall exclude any day on which commercial banks and
foreign exchange markets do not settle payments in London.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of upon the voluntary or involuntary liquidation, dissolution
or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from
time to constituted, created under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties from time
to time assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Common Depositary" has the meaning specified in Section 403.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the
<PAGE>
4
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request", "Request of the Company", "Company Order" or "Order
of the Company" means a written request or order signed in the name of the
Company by an Officer of the Company and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 410(i).
"Consolidated Net Assets" means, with respect to any Person as of any
date of determination, the total assets of such person and its Subsidiaries on a
consolidated basis, less current liabilities of such Person and its Subsidiaries
on a consolidated basis as of such date, all computed in accordance with
generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 410(e).
"Conversion Rate" has the meaning specified in Section 712.
"Corporate Trust Office" means the office of the Trustee in New York,
New York, at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is 450 W. 33rd Street, New York,
New York 10001-2697, except that with respect to the presentation of Securities
(or Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"corporation" includes corporations, associations, companies and
business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a
Bearer Security.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 406.
"Discharged" has the meaning specified in Section 505.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
<PAGE>
5
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 410(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 410(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate Agent" means the entity appointed by the Company
pursuant to Section 104(e). Unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, the Luxembourg Stock Exchange
shall act as Exchange Rate Agent for purposes of Section 410 in the case of each
series of Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex
or a certificate setting forth (i) the applicable Official Currency Unit
Exchange Rate and (ii) the Dollar or Foreign Currency or currency unit amounts
of principal, premium, if any, and interest, if any, respectively (on an
aggregate basis and on the basis of a Security having a principal amount of
1,000 units in the relevant currency or currency unit), payable on the basis of
such Official Currency Unit Exchange Rate, sent (in the case of a telecopy or
telex) or executed (in the case of a certificate) by the Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company and delivered to the Trustee; such telecopy, tested telex or certificate
need not comply with Section 102.
"Existing Mortgages" means, with respect to any series of Securities,
Mortgages on property or assets of the Company or any Subsidiary of the Company
existing on, or provided for in agreements existing on, the Issue Date for such
series.
"Finance Subsidiary" means a Subsidiary of the Company engaged
primarily in pricing or assisting in financing the acquisition or disposition of
products of the Company or of a Subsidiary of the Company by dealers,
distributors or customers.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Foreign Government Securities" has the meaning specified in Section
505.
<PAGE>
6
"Foreign Subsidiary" means a Subsidiary of the Company which is
incorporated or organized in a jurisdiction outside the United States and any
Subsidiary of such a Subsidiary.
"Funded Debt" means (a) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but which is by its terms
renewable or extendible beyond 12 months from such date at the option of the
borrower and (b) rental obligations payable more than 12 months from such date
under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt at
the amount so capitalized and to be included for the purposes of the definition
of Consolidated Net Assets both as an asset and as Funded Debt at the amount so
capitalized).
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 202 or Section 301, as the case may be.
"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 installment of interest on such Security.
"Issue Date" means, with respect to any series of Securities, the
first date on which Securities of such series are issued under this Indenture.
"Market Exchange Rate" has the meaning specified in Section 410(i).
"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.
"Medium-Term Debt Securities" has the meaning specified in Section
301.
"Medium-Term Debt Securities Certificate" shall mean a certificate
signed by an Officer of the Company, or any other employee of the Company
designated by a Board Resolution as having the authority to deliver a
Medium-Term Debt Securities Certificate hereunder.
<PAGE>
7
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to which
neither the Company nor its Subsidiaries (other than a Non-Recourse Subsidiary)
(A) provide credit support (including any undertaking, agreement or instrument
which would constitute Debt), (B) are directly or indirectly liable or (C)
constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary of the Company which (i)
has not acquired any assets (other than cash) directly or indirectly from the
Company or any Subsidiary of the Company, (ii) only owns assets acquired after
the Issue Date and on or prior to the date such entity becomes a Subsidiary of
the Company and (iii) has no Debt other than Non-Recourse Debt.
"Officer" means the Chairman of the Board, the President, any Senior
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, or an Officer and an Assistant
Secretary of the Company, and delivered to the Trustee. Each such Officers'
Certificate shall contain the statements provided in Section 102 if and to the
extent required by the provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the currency or currency unit of payment calculated by the Exchange
Rate Agent for the Securities of the relevant series (in the case of ECU,
reported by the Commission of the European Communities and on the date hereof
based on the rates in effect at 2:30 p.m., Brussels time, on the exchange
markets of the Component Currencies of ECU), on the Business Day (in the city in
which such Exchange Rate Agent has its principal office) immediately preceding
delivery of any Exchange Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of legal counsel for the
Company, who may be an employee of the Company and who shall be acceptable to
the Trustee. Each Opinion of Counsel shall contain the statements provided in
Section 102 if and to the extent required by the provisions of such Section.
"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 602.
<PAGE>
8
"Outstanding" or "outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered or
deemed delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount and in the required currency or currency unit has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 405 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 any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 602, (ii) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (i)
above) of such Security, and (iii) 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 or waiver, only
parties 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
<PAGE>
9
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 the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in accordance with Section 202 or Section 301, as the case may be.
"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 purpose of this definition, any Security
authenticated and delivered under Section 405 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real estate or warehouse owned or
leased by the Company or any Restricted Subsidiary of the Company which is
located within the United States of America and the gross book value (including
related land and improvements thereon and all machinery and equipment included
therein without deduction of any depreciation reserves) of which on the date as
of which the determination is being made exceeds 2% of Consolidated Net Assets,
other than (a) any property which in the opinion of the Board of Directors is
not of material importance to the total business conducted by the Company as an
entirety or (b) any portion of a particular property which is found by the Board
of Directors not to be of material importance to the use or operation of such
property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"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, in the currency or currency unit in which such
Security is payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Global Note" has the meaning specified in Section 412.
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10
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 202 or Section 301, as the case may be,
which date shall be, unless otherwise specified pursuant to Section 202 or
Section 301, as the as the case may be, the fifteenth day preceding such
Interest Payment Date, whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 115.
"Responsible Trust 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, any
assistant 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.
"Restricted Subsidiary" means a Subsidiary of the Company (a)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States of America and (b)
which owns a Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section
1105.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Bearer Security, shall include where appropriate any Coupons appertaining
thereto.
"Security Register" has the meaning specified in Section 404.
"Security Registrar" means the Person appointed as the initial
Security Registrar in Section 404 or any Person appointed by the Company as a
successor or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 406.
"Specified Amount" has the meaning specified in Section 410(i).
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11
"Stated Maturity", when used with respect to any Security (or Coupon,
if any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified corporation means (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both or (ii) any other person (other than a corporation) in
which the specified corporation or one or more of its Subsidiaries, or both,
shall at the time, directly or indirectly, have greater than a 50% ownership
interest.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the First Indenture Reform Act of 1990, and as in force at the date
as of which this instrument was executed, except as provided in Section 1005.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Book-Entry Securities" means Securities represented by a
definitive global Security registered in the name of the U.S. Depositary or its
nominee.
"U.S. Depositary" means a clearing agency registered under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 202 or Section 301, as the case may be, until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Securities of any series shall mean the U.S. Depositary with respect to the
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
505.
"Valuation Date" has the meaning specified in Section 410(e).
"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".
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12
"Voting Stock", as applied to the stock of any corporation, means
stock of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect members of the board of directors (or other
governing body) or such corporation other than stock having such power only by
reason of the happening of a contingency.
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 an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 1107)
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 or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the
<PAGE>
13
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) The principal amount and serial
numbers of Bearer Securities held by any Person, and the date of holding the
same, may be proved by the production of such Bearer Securities or by a
certificate executed by any trust company, bank, banker or other depository,
wherever situated, showing that at the date therein mentioned such Person had on
deposit with such depository, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (2) such Bearer Security is produced to the Trustee
by some other Person, (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
(b) The fact and date of execution of any such instrument or writing
pursuant to clause (a) above, the authority of the Person executing the same and
the principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this clause.
(c) The principal amount and serial numbers of Registered Securities
held by any Person and the date of holding the same shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon 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 and/or Coupon.
(e) Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate
<PAGE>
14
principal amount of the Securities denominated in a Foreign Currency (or any
currency unit) shall be deemed to be that amount determined by the Company or by
an authorized Exchange Rate Agent and evidenced to the Trustee by an Officers'
Certificate as of the date the taking of such Act by the Holders of the
requisite percentage in principal amount of the Securities is evidenced to the
Trustee to be equal to the Dollar equivalent obtained by converting the
specified Foreign Currency or currency unit into Dollars at the Market Exchange
Rate on such date (or, in the case of a Security denominated in a currency unit
for which there is no Market Exchange Rate, the Dollar equivalent obtained by
adding together the results obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for each such
Component Currency on such date) of the principal amount (or, in the case of an
Original Issue Discount Security, the principal amount thereof that would be due
and payable as of the declaration of acceleration of the Maturity thereof
pursuant to Section 602 on such date) of such Security. An Exchange Rate Agent
may be authorized in advance or from time to time by the Company. Any such
determination by the Company or by any such Exchange Rate Agent shall be
conclusive and binding on all Holders, the Company and the Trustee, and neither
the Company nor any such Exchange Rate Agent shall be liable therefor in the
absence of bad faith.
(f) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 105. Notices, etc. to Trustee and Company. Any notice or
communication shall be sufficiently given if in writing and delivered in person
or by facsimile transmission or mailed by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
Manor Care, Inc.
11555 Darnestown Road
Gaithersburg, Maryland 20878-3200
Attention: Secretary
<PAGE>
15
If to the Trustee:
The Chase Manhattan Bank
450 W. 33rd Street
New York, New York, 10001-2697
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice of communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it; provided, however, that any notice or
communication to the Trustee shall be effective only upon receipt.
SECTION 106. Notice to Holders; Waiver. (a) Where this Indenture
provides for notice to Holders of any event:
(i) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such Securities)
if in writing and delivered in person, mailed, first-class postage prepaid
or sent by overnight courier, to each Holder affected by such event, at his
address as it appears in the Security Register, within the time prescribed
for the giving of such notice, and
(ii) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such Securities)
if (A) published once in an Authorized Newspaper in New York City and
London and, if applicable, in Luxembourg or such other place of publication
as may be required pursuant to the rules and regulations of any securities
exchange on which such Securities are listed, and (B) delivered in person,
mailed, first-class postage prepaid or sent by overnight courier to such
Persons whose names were previously filed with the Trustee, within the time
prescribed for the giving of such notice.
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 to Holders of
Registered Securities in the manner
<PAGE>
16
specified above, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder.
(b) In any case where notice to a Holder of Registered Securities is
given in any manner specified in paragraph (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in paragraph (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any notice so
mailed or sent, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided in Paragraph (a) above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
(c) 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 of Securities 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.
SECTION 107. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of Sections
310 to 317, inclusive, of the Trust Indenture Act through operation of Section
318(c) thereof, such imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and a Holder shall have no claim
therefor against any party hereto.
<PAGE>
17
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in
the Securities or Coupons, 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 AND
COUPONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 113. Legal Holidays. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or Coupon shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of such Security or
Coupon) 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, as
the case may be, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment.
SECTION 114. Moneys of Different Currencies To Be Segregated. The
Trustee shall segregate moneys, funds and accounts held by the Trustee hereunder
in one currency (or currency unit) from any moneys, funds or accounts in any
other currencies (or currency units), notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
SECTION 115. Payment To Be in Proper Currency. In the case of any
Security denominated in any particular currency or currency unit (the "Required
Currency"), subject to applicable law and except as otherwise provided herein,
therein or in or pursuant to the related Board Resolution, Medium-Term Debt
Securities Certificate or supplemental indenture, the obligation of the Company
to make any payment of principal, premium or interest thereon shall not be
discharged or satisfied by any tender by the Company, or recovery by the Trustee
in any currency or currency unit other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee's timely holding
the full amount of the Required Currency then due and payable. If any such
tender or recovery is made in other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such other currency or
currency unit for the Required Currency. The costs and risks of any such
exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall be liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor. The
Company hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when exchanged for the
<PAGE>
18
Required Currency by the Trustee, is less than the full amount of the Required
Currency then due and payable
SECTION 116. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
thus Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 117. Changes in Exhibits. At any time and from time to time,
the Company may substitute a new form, or add new forms, of the Exhibits hereto.
Such substitution shall be effective upon receipt by the Trustee of such new
form of Exhibit and a Board Resolution or Officers' Certificate adopting such
new form of Exhibit, and thereafter all references in this Indenture to such
Exhibit shall be deemed to refer to such new form of Exhibit.
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited. An unlimited
aggregate principal amount of Securities may be issued pursuant to this Article
Two and, in the case of Medium-Term Debt Securities, pursuant to Article Three.
The Securities (including Medium-Term Debt Securities) may be authenticated and
delivered, as authorized by the Board of Directors, in an unlimited number of
series.
SECTION 202. Documents Required for Issuance of Each Series of
Securities Other than Medium-Term Debt Securities. At any time and from time to
time, Securities of each series created pursuant to the provisions of this
Article Two may be executed by the Company and delivered to the Trustee and
shall be authenticated by the Trustee and delivered to, or upon the order of,
the Company upon receipt by the Trustee of the following:
(a) A Board Resolution or Board Resolutions authorizing the execution,
authentication and delivery of the Securities of the series, and
specifying, to the extent applicable, the following items:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (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 403, 404,
405, 1006 or 1207 and except for any Securities which, pursuant
<PAGE>
19
to Section 402, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the method
of determination thereof;
(4) the rate or rates (which may be fixed or variable) per annum,
or the method of determination thereof, at which any of the Securities
of the series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the
interest payable on any Registered Securities on any Interest Payment
Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
1102;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(7) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
shall be so redeemed or purchased, in whole or in part;
(8) the terms of the obligation of the Company, if any, to permit
the conversion of the Securities of the series into stock or other
securities of the Company or of any other corporation;
(9) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(10) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the
<PAGE>
20
denominations in which the Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 602;
(12) the application, if any, of Section 501, or such other means
of satisfaction and discharge and/or defeasance as may be specified
for the Securities and Coupons, if any, of a series;
(13) any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth in Article Nine or Eleven pertaining to the Securities of the
series (including without limitation whether the provisions of Section
1104 or Section 1105 shall not be applicable to the Securities of the
series);
(14) the forms of the Securities and Coupons, if any, of the
series;
(15) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will be
denominated and/or in which payment of the principal of (and premium,
if any) and interest, if any, on any of the Securities of the series
shall be payable and the Exchange Rate Agent, if any, for such series;
(16) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit or
units, other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, including without
limitation the application of Section 410(b) and any deletions to,
modifications of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(17) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may
be determined with reference to an index based on (i)
<PAGE>
21
a currency or currencies or currency unit or units other than that in
which such Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(18) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or any combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in definitive global form
with or without Coupons and, if so, whether beneficial owners of
interests in any such definitive global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which and
the place or places where any such exchanges may occur, if other than
in the manner provided in Section 404;
(19) if the Securities and Coupons, if any, of the series are to
be issued upon the exercise of warrants, the time, manner and place
for such Securities and Coupons, if any, to be authenticated and
delivered;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including a definition of such term),
in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
(21) the Person to whom any interest on any Registered 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,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons
<PAGE>
22
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 403; and
(22) whether the Securities of the series shall be issued in
whole or in part in the form of one or more global Securities and, in
such case, the U.S. Depositary or any Common Depositary for, and any
other provisions relating to, such global Security or global
Securities; and if the Securities of the series are issuable only as
Registered Securities, (A) the manner in which and the circumstances
under which Registered Global Notes representing Securities of the
series may be exchanged for Registered Securities in definitive form,
if other than, or in addition to, the manner and circumstances
specified in Section 412, and (B) any other provisions that may be
necessary or desirable to effect compliance with the rules,
regulations, practices and policies of the U.S. Depositary from time
to time in effect, which provisions may or may not be consistent with
Section 412; and
(23) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers' Certificate
certifying as to such action also shall be delivered to the Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental indentures,
such supplemental indenture or indentures, accompanied by a Board Resolution or
Board Resolutions authorizing such supplemental indenture or indentures and
designating the new series to be created and prescribing pursuant to paragraph
(a) above, consistent with the applicable provisions of this Indenture, the
terms and provisions relating to the Securities of the series.
(c) Either (i) a certificate or other official document evidencing the
due authorization, approval or consent of any governmental body or bodies, at
the time having jurisdiction in the premises, together with an Opinion of
Counsel that the Trustee is entitled to rely thereon and that the authorization,
approval or consent of no other governmental body is required, or (ii) an
Opinion of Counsel that no authorization, approval or consent of any
governmental body is required.
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23
(d) An Opinion of Counsel that all instruments furnished to the
Trustee conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver the Securities
and to deliver the Coupons, if any, of the series; that all conditions precedent
provided for in this Indenture relating to the authentication and delivery of
the Securities and delivery of the Coupons, if any, of the series have been
complied with and the Company is duly entitled to the authentication and
delivery of the Securities and Coupons, if any, of the series in accordance with
the provisions of this Indenture; that all laws and requirements with respect to
the form and execution by the Company of the supplemental indenture, if any, and
the execution and delivery by the Company of the Securities and Coupons, if any,
of the series have been complied with; that the Company has corporate power to
execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all necessary
corporate action for those purposes; and that the supplemental indenture, if
any, as executed and delivered and the Securities and Coupons, if any, of the
series, when issued, will be the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally from time to time
in effect, the enforceability of the Company's obligations also being subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law)); that the Securities and
Coupons, if any, of the series, when issued, will be entitled to the benefits of
this Indenture, equally and ratably with all other Securities and Coupons, if
any, of such series theretofore issued and then outstanding hereunder; and that
the amount of Securities then outstanding under this Indenture, including the
Securities of the series, will not exceed the amount at the time permitted by
law or this Indenture.
(e) An Officers' Certificate stating that the Company is not in
default under this Indenture and that the issuance of the Securities and
Coupons, if any, of the series will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, the Company's
certificate of incorporation or by-laws or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or by
which it is bound, or any order of any court or administrative agency entered in
any proceeding to which the Company is a party or by which it may be bound or to
which it may be subject; and that all conditions precedent provided in this
Indenture relating to the authentication and delivery of the Securities and
Coupons, if any, of the series have been complied with.
<PAGE>
24
(f) Such other documents as the Trustee may reasonably require.
SECTION 203. Form of Securities Other than Medium-Term Debt
Securities. The Securities and Coupons, if any, of each series shall be in such
forms as shall be specified as contemplated by Section 202.
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of
Medium-Term Debt Securities. At any time, and from time to time, Securities
(sometimes referred to herein as "Medium-Term Debt Securities") of each series
created pursuant to the provisions of this Article Three may be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered to, or upon the order of, the Company upon receipt by the Trustee
of the following:
(a) A Board Resolution or Board Resolutions authorizing the execution,
authentication and delivery of Medium-Term Debt Securities up to a
specified aggregate principal amount, in such series and subject to such
terms as shall be established by officers of the Company authorized by such
resolutions to establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee
to authenticate and deliver Medium-Term Debt Securities of a series as
contemplated by Section 402, and specifying, to the extent applicable, with
respect to the Medium-Term Debt Securities of the particular series,
authorized pursuant to the Board Resolution or Board Resolutions referred
to in paragraph (a) above, the terms required by Section 202(a) and the
following additional terms:
(1) the method of determining the dates of the Medium-Term Debt
Securities of the series; and
(2) if other than the forms set forth in Exhibit A hereto, the
forms of the Medium-Term Debt Securities and Coupons, if any, of the
series.
For purposes of this Section 301 only, all references in Section
202(a) to "Securities" shall be deemed to be references to "Medium-Term
Debt Securities", and all references to "this Article Two" shall be deemed
to be references to "this Article Three".
<PAGE>
25
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to paragraph (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the
delivery of such Medium-Term Debt Securities Certificate to the Trustee
shall be deemed to be a certification by the Company that all matters
certified in the most recent Officers' Certificate delivered to the Trustee
pursuant to paragraph (d) below continue to be true and correct, as if such
Officers' Certificate related to the Medium-Term Debt Securities covered by
such Medium-Term Debt Securities Certificate, on and as of the date of such
Medium-Term Debt Securities Certificate. The delivery of such Medium-Term
Debt Securities Certificate also shall be deemed to be a certification that
the Board Resolution or Board Resolutions referred to in paragraph (a)
above are in full force and effect on and as of the date of such
Medium-Term Debt Securities Certificate and that the terms and form or
forms of the Medium-Term Debt Securities and Coupons, if any, of the series
have been established by an officer or officers of the Company authorized
by such Board Resolution or Board Resolutions in accordance with the
provisions thereof and hereof.
(c) If (i) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this paragraph (c)
with respect to the Medium-Term Debt Securities authorized pursuant to the
Board Resolution or Board Resolutions referred to in paragraph (a) above or
(ii) the Medium-Term Debt Securities Certificate referred to in paragraph
(b) above specifies a means of satisfaction and discharge other than the
application of Section 501 with respect to the series of Medium-Term Debt
Securities to which such Medium-Term Debt Securities Certificate relates,
an Opinion of Counsel that the Medium-Term Debt Securities have been duly
authorized by resolutions of the Board of Directors of the Company, subject
to the establishment of certain terms of the Medium-Term Debt Securities
and Coupons, if any, of the series by officers of the Company authorized by
such resolutions to establish such terms, that when the terms of the
Medium-Term Debt Securities and Coupons, if any, of the series have been
established as provided in such resolutions and in this Indenture and the
Medium-Term Debt Securities and Coupons, if any, of the series have been
executed, authenticated and delivered in accordance with the provisions of
this Indenture, the Medium-Term Debt Securities and Coupons, if any, of the
series, assuming they do not violate any applicable law then binding on the
Company, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of this Indenture, equally and ratably
with all other Securities and Coupons, if any, of such series theretofore
issued and then outstanding hereunder, and that the amount of Securities
then outstanding under this Indenture, including the Medium-Term Debt
Securities of the series, will not exceed the amount at the time permitted
by law or this Indenture.
<PAGE>
26
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this paragraph (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating
that the Company is not in default under this Indenture, that the issuance
of the Medium-Term Debt Securities and Coupons, if any, of the series will
not result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, the Company's certificate of incorporation
or By-laws or any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it is bound, or any
order of any court or administrative agency entered in any proceeding to
which the Company is a party or by which it may be bound or to which it may
be subject, that all laws and requirements with respect to the execution
and delivery by the Company of the Medium-Term Debt Securities and Coupons,
if any, of the series have been complied with and that all conditions
precedent provided in this Indenture relating to the authentication and
delivery of the Medium-Term Debt Securities and Coupons, if any, of the
series have been complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 302. Form of Medium-Term Debt Securities. The Medium-Term Debt
Securities and Coupons, if any, of each series shall be in such forms as shall
be specified as contemplated by Section 301.
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination. All Securities of any one series
and the Coupons appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to in Section 202 or Section 301, as the case may be, and
(subject to Section 402) set forth in the Officers' Certificate or Medium-Term
Debt Securities Certificate referred to in Section 202 or Section 301, as the
case may be, or in any indenture supplemental hereto.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 202 or Section 301, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the
<PAGE>
27
Trustee. Each Security shall bear the appropriate legends, if any, as required
by U.S. Federal tax law and regulations.
SECTION 402. Execution, Delivery, Dating and Authentication. The
Securities and any Coupons shall be executed on behalf of the Company by the
manual or facsimile signature of two Officers, under its corporate seal
reproduced thereon. In case any of the above referenced Officers of the Company
who shall have signed any of the Securities or Coupons shall cease to be such
Officer before the Securities so signed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities and/or Coupons had not ceased to be such
Officer; and any Securities or Coupons may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Security or Coupon,
shall be such Officers of the Company, although at the date of the execution of
this Indenture any such person was not such Officer.
At any time and from time to time, the Company may deliver Securities
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; provided, however, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to any
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 403 which is
not in global form) shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 403
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to
the earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt
Securities Certificate) with respect to such Bearer Securities, a confirmation
substantially in the form set forth in Exhibit B.5 to this indenture shall be
sent to each purchaser thereof. If any Security shall be represented by a
definitive global Bearer Security, then, for purposes of this Section and
Section 403, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial
<PAGE>
28
owner's interest in such definitive global Bearer Security. Except as permitted
by Section 405, the Trustee shall not authenticate and make available for
delivery any Bearer Security unless all appurtenant Coupons for interest then
matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any
series 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, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 301(b)(1), each
Registered Security shall be dated the date of its authentication, and each
Bearer Security and any Bearer Security in global form shall be dated as of the
date of original issuance of the first Security of such series to be issued.
No Security or Coupon 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
below 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 duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 408
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
<PAGE>
29
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated:
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
Authorized Officer
SECTION 403. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order (or, in the case of Medium-Term Debt Securities, receipt of the
Medium-Term Debt Securities Certificate with respect to such Medium-Term Debt
Securities) the Trustee shall authenticate and make available for delivery,
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, in
registered form or, if authorized, in bearer form with one or more Coupons or
without Coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the Officers executing such Securities may determine, as
evidenced conclusively by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of 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 maintained pursuant to Section 1102 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor and of authorized denominations; provided,
however, that, unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; provided further that
a definitive Bearer Security shall be delivered in
<PAGE>
30
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 402.
If temporary Bearer Securities of any series are issued in global
form, such temporary global Bearer Securities shall, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, be deposited
with a common depository in London for Morgan Guaranty Trust Company of New
York, Brussels Office (the "Common Depositary"), as operator of the Euro-clear
System and CEDEL S.A., for credit to the respective accounts of the beneficial
owners of interests in such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date each such temporary global Security shall be surrendered by
the Common Depositary to the Trustee, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, definitive global form or any combination thereof, as specified
as contemplated by Section 202 or Section 301, as the case may be, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, upon such presentation by the
Common Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B.2 to this Indenture; provided further that definitive Bearer
Securities (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 402.
Unless otherwise specified as contemplated by Section 202 or Section
301, as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary global Bearer Security shall be exchanged for definitive
Bearer Securities of the same series and of like tenor following the Exchange
Date when the beneficial owner instructs Euro-clear or CEDEL S.A., as the case
may be, to request such exchange on his behalf and delivers to Euro-clear or
CEDEL S.A., as the case may be, a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euro-clear, CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and any Paying Agent appointed for such
series of Securities. Unless otherwise specified as contemplated by Section 202
or
<PAGE>
31
Section 301, as the case may be, any such exchange shall be made free of charge
to the beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL
S.A. The definitive Bearer Securities to be delivered in exchange for any
portion of a temporary global Security shall be delivered to locations only
outside the United States.
Until exchanged in full as provided above, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, interest
payable on any portion of a temporary global Bearer Security on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to each of Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee
of a certificate or certificates substantially in the form set forth in Exhibit
B.3 to this Indenture, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security (or to such other accounts
as they may direct) on such Interest Payment Date and who have each delivered to
Euro-clear or CEDEL S.A., as the case may be, a certificate substantially in the
form set forth in Exhibit B.4 to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
1103.
SECTION 404. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at an office or agency to be maintained by the
Company in accordance with Section 1102 a register (being the combined register
of the Security Registrar and all additional transfer agents designated pursuant
to Section 1102 for the purpose of registration of transfer of Securities and
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 Registered Securities (other than U.S. Book-Entry
Securities) and the registration of transfers of Registered Securities. The
Chase Manhattan Bank is hereby appointed the initial Security Registrar. At all
reasonable times each register maintained by the Security Registrar and any
additional transfer agents shall be open for inspection by the Trustee.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1102 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged
<PAGE>
32
at any such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified as contemplated by Section 202
or Section 301, as the case may be, Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured Coupons and all matured Coupons in default
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1102, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any definitive
global Bearer Security shall be exchangeable only as provided in this paragraph.
If the beneficial owners of interests in a definitive global Bearer Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 202 or Section 301, as the case may be,
<PAGE>
33
then without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in an aggregate principal amount equal to the
principal amount of such definitive global Bearer Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such other depositary or Common Depositary as shall be
specified in the Company Order or Medium-Term Debt Securities Certificate, as
the case may be, with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and make
available for delivery, in exchange for each portion of such definitive global
Bearer Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such definitive global Bearer Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 202 or Section
301, as the case may be, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 Business Days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; provided further that no Bearer Security delivered in exchange
for a portion of a definitive global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a definitive global Bearer Security after
the close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such definitive global Bearer Security is payable in accordance
with the provisions of this Indenture.
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent 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
<PAGE>
34
exchange of Securities, other than exchanges pursuant to Section 403, 1006 or
1207 not involving any transfer.
In the event of any redemption in part of any series of Securities,
the Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 Business Days before any selection of Securities of that series to
be redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the day of mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and of like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security, provided that if such new
Security is a Bearer Security, such Security shall be delivered only outside the
United States.
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
or Coupon 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 or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains (upon surrender to the Trustee of
such Security with all appurtenant Coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appearing to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such Security
or Coupon; provided, however, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
1102, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 202 or Section 301,
as the case may
<PAGE>
35
be, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon 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 or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, 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 or
Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 406. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be, with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. At the option of the Company,
interest on the Registered Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such address shall
appear in the Security Register.
Any interest on any Registered 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 Registered 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,
<PAGE>
36
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 at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been 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
Registered 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 and Section 404,
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 407. Persons Deemed Owners. Prior to due presentment of a
Registered 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
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 404, 406 and 411 and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be) interest on such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any Coupons shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the absolute
owner of such Security or Coupon
<PAGE>
37
for the purpose of receiving payment thereof or on account thereof (unless
otherwise specified as contemplated by Section 202 or Section 301, as the case
may be) and for all other purposes whatsoever, whether or not such Security or
Coupon be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 408. Cancellation. All Securities and Coupons 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. All Securities and Coupons so delivered
shall be promptly canceled by the Trustee. All Bearer Securities and unmatured
Coupons held by the Trustee pending such cancellation shall be deemed to be
delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for cancellation
any Securities 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 to the Trustee shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities and
Coupons held by the Trustee shall be destroyed by the Trustee and a
certification of their destruction delivered to the Company unless by a Company
Order, the Company shall direct that cancelled Securities be returned to it.
SECTION 409. Computation of Interest. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, for Securities
of any series, interest on the Securities of each series shall bc computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 410. Currency and Manner of Payment in Respect of Securities.
The provisions of this Section shall apply to the Securities of any series
unless otherwise provided as contemplated by Section 202 or Section 301, as the
case may be.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency
unit, including without limitation ECU, except as provided in paragraph (b)
below:
(1) Except as provided in subparagraph (a)(2) or in paragraph (e)
below, payment of principal of and premium, if any, on such Registered
Security will be made at the Place of Payment by delivery of a check
in the currency or currency unit in which the Security is denominated
on the payment date against surrender of such Registered Security, and
any interest on any Registered Security will be paid at the Place of
Payment by mailing a check in the currency or currency unit in which
such interest is payable (which shall be the same as that in which the
Security is
<PAGE>
38
denominated unless otherwise provided) to the Person entitled thereto
at the address of such Person appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series denominated
in any currency unit, including without limitation ECU, if the following
provisions (or any substitute therefor, or addition thereto, not
inconsistent with this Indenture) are established pursuant to Section 202
or Section 301, as the case may be, and if the Company has not, before the
delivery of the election referred to in clause (1) below, deposited funds
or securities in compliance with Section 501, the following payment
provisions shall apply to any payment to be made prior to the giving of any
notice to Holders of any election to redeem pursuant to Section 1204,
except as otherwise provided in paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall have the option to
elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for such
Securities (or as provided by Section 202 or Section 301, as the case
may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New York,
New York, on the day 15 days prior to the applicable payment date.
Such election will remain in effect for such Holder until changed by
the Holder by written notice to the Paying Agent (but any such written
notice must be received by the Paying Agent not later than the close
of business on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and no such
change may be made with respect to payments to be made on any Security
of such series with respect to which notice of redemption has been
given by the Company pursuant to Article Twelve). Any Holder of any
such Security who shall not have delivered any such election to the
Paying Agent in accordance with this paragraph (b) will be paid the
amount due on the applicable payment date in the relevant currency
unit as provided in paragraph (a) of this Section. Payment of
principal of and premium, if any, shall be made on the payment
<PAGE>
39
date therefor against surrender of such Security. Payment of
principal, premium, if any, and interest, if any, shall be made at the
Place of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Holder entitled thereto
at the address of such Holder appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in Section 403
with respect to temporary global Securities, unless otherwise specified
pursuant to Section 202 or Section 301, as the case may be, and/or Section
1001(8), at such place or places outside the United States as may be
designated from time to time by the Company pursuant to any applicable laws
or regulations by any appropriate method in the currency or currencies or
currency unit or units in which the Security is payable (except as provided
in paragraph (e) below) on the payment date therefor against surrender of
the Bearer Security, in the case of payment of principal and premium, if
any, or the relevant Coupon, in the case of payment of interest, if any, to
a Paying Agent designated for such series pursuant to Section 1102.
(d) Not later than 10 Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities to
be made on such payment date, in the currency or currency unit in which
each of the Securities is payable, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities and in respect of
the Registered Securities as to which the Holders of Securities denominated
in any currency unit shall have elected to be paid in another currency or
currency unit as provided in paragraph (b) above. If the election referred
to in paragraph (b) above has been provided for pursuant to Section 202 or
Section 301, as the case may be, and if at least one Holder has made such
election, then, not later than the fifth Business Day (with respect to any
Place of Payment) prior to the applicable payment date the Company will
deliver to the Trustee an Exchange Rate Officers' Certificate in respect of
the Dollar or Foreign Currency or currency unit payments to be made on such
payment date. The Dollar or Foreign Currency or currency unit amount
receivable by Holders of Registered Securities denominated in a currency
unit who have elected payment in another currency or currency unit as
provided in paragraph (b) above shall be determined by the
<PAGE>
40
Company on the basis of the applicable Official
Currency Unit Exchange Rate set forth in the
applicable Exchange Rate Officers' Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if ECU
ceases to be used within the European Monetary System, or if any other
currency unit in which a Security is denominated or payable ceases to be
used for the purposes for which it was established, in each case as
determined in good faith by the Company, then with respect to each date for
the payment of principal of, premium, if any, and interest, if any, on the
applicable Security denominated or payable in such Foreign Currency, ECU or
such other currency unit occurring after the last date on which such
Foreign Currency, ECU or such other currency unit was so used (the
"Conversion Date"), the Dollar shall become the currency of payment for use
on each such payment date (but ECU or the Foreign Currency or the currency
unit previously the currency of payment shall, at the Company's election,
resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which gave rise
to the Dollar becoming such currency no longer prevail, in each case as
determined in good faith by the Company). The Dollar amount to be paid by
the Company to the Trustee and by the Trustee or any Paying Agent to the
Holder of such Security with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, as determined by the
Exchange Rate Agent (which shall be delivered in writing to the Trustee not
later than the fifth Business Day prior to the applicable payment date) as
of the Conversion Date or, if later, the date most recently preceding the
payment date in question on which such determination is possible of
performance, but not more than 15 days before such payment date (such
Conversion Date or date preceding a payment date as aforesaid being called
the "Valuation Date") in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as
provided for by paragraph (b) and such Foreign Currency ceases to be used
both by the government of the country which issued such currency and for
the payment of transactions by public institutions of or within the
international banking community, or if ECU ceases to be used within the
European Monetary System, or if another currency unit ceases to be used for
the purposes for which it is established, in each case as determined in
good faith by the Company, such Holder shall (subject to paragraph (e)
above) receive payment in the currency unit in which the Security is
<PAGE>
41
denominated. Each payment covered by an election pursuant to paragraph (b)
above shall be governed by the provisions of this paragraph (f) (but,
subject to any contravening valid election pursuant to paragraph (b) above,
the specified Foreign Currency or ECU or other currency unit shall, at the
Company's election, being the currency or currency unit, as applicable, of
payment with respect to Holders who have so elected, but only with respect
to payments on payment dates preceded by 15 Business Days during which the
circumstances which gave rise to such currency unit becoming the currency
unit of payment, no longer prevail, in each case as determined in good
faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date and shall
be obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component Currency.
(i) For purposes of this Section 410 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including without limitation ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units (including decimals) which such Component Currency
represented in the relevant currency unit, on the Conversion Date or,
if ECU and such currency unit is being used for settlement of
transactions by public institutions of or within the European
Communities or was so used after the Conversion Date, the Valuation
Date or the last date the currency unit was so used, whichever is
later. If after such date the official unit of any Component Currency
is altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the same
proportion. If after such date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified
<PAGE>
42
Amounts of such consolidated Component Currencies expressed in such
single currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a Component
Currency. If after such date any Component Currency shall be divided
into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of such two
or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency and such
amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any
currency or currency unit the noon Dollar buying rate for that
currency or currency unit, as the case may be, for cable transfers
quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York or such other rate as may be
established pursuant to Section 202 or Section 301, as the case may
be. If such rates are not available for any reason with respect to one
or more currencies or currency units for which an Exchange Rate is
required, the Exchange Rate Agent shall use, in its sole discretion
and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or in the
country of issue of the currency or currency unit in question, or such
other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be
used in respect of such currency or currency unit shall be that upon
which a nonresident issuer of securities designated in such currency
or currency unit would, as determined in its sole discretion and
without liability on the part of the Exchange Rate Agent, purchase
such currency or currency unit in order to make payments in respect of
such securities.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit and the Market Exchange Rate shall be
in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Securities and Coupons denominated or payable
in the relevant currency or
<PAGE>
43
currency units. In the event that a Foreign Currency ceases to be used
both by the government of the country which issued such currency and
for the settlement of transactions by public institutions of or within
the international banking community, the Company, after learning
thereof, will immediately give written notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice in the manner
provided in Section 106 to the Holders) specifying the Conversion
Date. In the event the ECU ceases to be used within the European
Monetary System, or any other currency unit in which Securities or
Coupons are denominated or payable, ceases to be used for the purposes
for which it was established, the Company, after learning thereof,
will immediately give written notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in
Section 106 to the Holders) specifying the Conversion Date. Any
actions taken pursuant to the parentheticals at the end of the first
sentence of Section 410(e) and at the end of Section 410(f) shall be
promptly set forth in like notices from the Company to the Trustee and
then from the Trustee to the Holders (which notices may be mailed with
payment to the Holders).
Subject to the provisions of Sections 701 and 702, the Trustee shall
be fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent, and shall not otherwise have
any duty or obligation to determine such information independently.
SECTION 411. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 202 or Section
301, as the case may be, then, notwithstanding clause (a)(8) of Section 202 and
clause (a)(8) of Section 202 as it applies to Section 301 and the provisions of
Section 401, such global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
(or, in the case of Medium-Term Debt Securities, the Medium-Term Debt Securities
Certificate) to be delivered to the Trustee pursuant to Section 402 or Section
403. Subject to the provisions of Section 402 and, if applicable, Section 403,
the Trustee shall deliver and redeliver any Security in definitive global bearer
form in the manner and upon written instructions given by the Person or Persons
specified therein or in the applicable Company Order (or, in the case of
Medium-Term Debt Securities, the Medium-Term Debt Securities Certificate). If a
Company Order (or, in the case of Medium-Term Debt Securities, Medium-Term Debt
Securities Certificate) pursuant to Section 402 or 403 has been, or
simultaneously is, delivered, any instructions by the Company
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44
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the fifth paragraph of Section
402 shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the fifth paragraph of Section 402.
Notwithstanding the provisions of Section 406, unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be,
payment of principal of and any premium and any interest on any Security in
definitive global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 407 and except as provided
in the preceding paragraph, if so specified as contemplated by Section 202 or
Section 301, as the case may be, with respect to the Securities of any series,
the Company, and any agent of the Company may, and the Trustee and any agent of
the Trustee, at the direction of the Company, may treat a Person having a
beneficial interest in a definitive global Security as the Holder of such
principal amount of Outstanding Securities of such Series represented by such
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security or, in the case of a definitive global
Security in bearer form, of Euro-clear or CEDEL S.A. which is produced to the
Trustee by such Person; provided, however, that none of the Company, the
Trustee, the Security Registrar or any Paying Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 412. Registered Global Notes. (a) If the Company shall
establish pursuant to Section 202 or Section 301, as the case may be, that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more global Securities (Registered Securities in the form of
global Securities being herein called "Registered Global Notes"), then the
Company shall execute and the Trustee shall, in accordance with Section 202 or
Section 301, as the case may be, and the Company Order or the Medium-Term Debt
Securities Certificate, as the case may be, with respect to such series,
authenticate and deliver one or more Registered Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by one or more Registered Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Registered Global Note or
Notes or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect:
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"THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY, UNLESS AND UNTIL THIS SECURITY IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM."
Notwithstanding any other provision of this Section 412 or Section 404, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a Registered Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
(b) If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if at any time the U.S.
Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor U.S. Depositary
with respect to the Securities of such series. If a successor U.S. Depositary
for the Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of a Company Order or a
Medium-Term Debt Securities Certificate, as the case may be, for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Registered Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Registered
Global Note or Notes representing such series in exchange for such Registered
Global Note or Notes.
(c) The Company may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Global Notes shall no longer be represented by such Registered Global
Note or Notes. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Registered Global Note or Notes representing such
series in exchange for such Registered Global Note or Notes.
(d) If the Registered Securities of any series shall have been issued
in the form of one or more Registered Global Notes and if an Event of Default
with respect to the Securities of such series shall have occurred and be
continuing, the Company will promptly execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Registered Securities of such series
in definitive form and in an aggregate principal amount equal to the principal
amount of
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46
the Registered Global Note or Notes representing such series in exchange for
such Registered Global Note or Notes.
(e) If specified by the Company pursuant to Section 202 or Section
301, as the case may be, with respect to Registered Securities of a series, the
U.S. Depositary for such series of Registered Securities may surrender a
Registered Global Note for such series of Securities in exchange in whole or in
part for Registered Securities of such series in definitive form on such terms
as are acceptable to the Company and such depositary. Thereupon, the Company
shall execute and the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Note; and
(ii) to the U.S. Depositary a new Registered Global Note in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Note and the aggregate principal
amount of Registered Securities delivered to Holders thereof.
(f) Upon the exchange of a Registered Global Note for Registered
Securities in definitive form, such Registered Global Note shall be cancelled by
the Trustee. Securities issued in exchange for a Registered Global Note pursuant
to this Section 412 shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Registered Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Termination of Company's Obligations. The Company may
terminate with respect to a series of Securities all of its obligations under
the Securities and this Indenture if all Securities and Coupons, if any, of such
series previously authenticated and delivered (other than destroyed, lost or
stolen Securities and Coupons which have been replaced or paid) have been
delivered to the Trustee for cancellation or if:
(a) (i) all such Securities and Coupons of such series not previously
delivered to the Trustee for cancellation mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving notice of redemption; or (ii) the
Holders of the Securities and Coupons of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option under this Section 501 and will be subject
to
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Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised;
(b) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations (as defined in Section 505) or, in the case
of Securities and Coupons, if any, denominated in a Foreign Currency,
Foreign Government Securities (as defined in Section 505) sufficient to pay
principal of, premium, if any, and interest on the Securities of such
series to maturity or redemption, as the case may be, and the Company pays
or makes arrangements satisfactory to the Trustee for the payment of all
other amounts due to the Trustee; and
(c) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent to the
discharge of the Company's obligations have been satisfied.
After such deliveries or a deposit, the Trustee, at the request and
expense of the Company, will execute proper instruments acknowledging the
Discharge of the Company's obligations under the Securities (and Coupons, if
any) and this Indenture with respect to such series except for those surviving
obligations specified in the definition of "Discharged" in Section 505.
In order to have money available on a payment date to pay principal
(including any premium) and interest, if any, under the Securities and Coupons,
if any, of such series, the U.S. Government Obligations or Foreign Government
Securities, as the case may be, shall be payable as to principal or interest on
or before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations and Foreign Government Securities shall not be
callable at the issuer's option. The Trustee shall receive a certificate of
either an independent accountant, the Company's Chief Financial Officer or
another financial advisor chosen by the Company to insure the accuracy of the
above.
SECTION 502. Application of Trust Money. The Trustee shall hold in
trust money, U.S. Government Obligations or Foreign Government Securities, as
the case may be, deposited with it pursuant to clause (b) of Section 501. It
shall apply the deposited money and the money from U.S. Government Obligations
or Foreign Government Securities, as the case may be, through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Securities of the series and redemption price, if applicable.
SECTION 503. Repayment to Company. The Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money or securities
held by them at any time. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal (and
premium, if any, on) or interest that remains unclaimed for two years. After
payment to the Company, Security holders entitled to money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person, and all liability of the Trustee or the Paying
Agent with respect to such trust money shall thereupon cease; provided, however,
that the Trustee
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or such Paying Agent, before being required to make any such repayment, may at
the expense and at the direction 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 herein, 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. All moneys payable to the Company by the Trustee or any Paying
Agent as provided in the preceding sentence shall be paid to the Company on May
31 of each year.
SECTION 504. Reinstatement. If the Trustee is unable to apply any
money, U.S. Government Obligations or Foreign Government Securities in
accordance with Section 501 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities and Coupons, if any, of such series
shall bc revived and reinstated as though no deposit had occurred pursuant to
Section 501 until such time as the Trustee is permitted to apply all such money,
U.S. Government Obligations or Foreign Government Securities in accordance with
Section 501; provided, however, that if the Company has made any payment of
interest on or principal of (and premium, if any) on any Securities and Coupons,
if any, of such series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities and Coupons, if any, to receive such payment from the money, U.S.
Government Obligations or Foreign Government Securities held by the Trustee.
SECTION 505. Definitions. The following terms, as used in this
Article, shall have the following meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Securities and Coupons, if any, of the series as to which this Section
is specified as applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities and Coupons, if
any, of such series (and the Trustee, at the request and expense of the
Company, will execute proper instruments acknowledging the same), except
(A) the rights of Holders thereof to receive, from the trust fund described
in Section 501(b), payment of the principal of (and premium, if any) and
the interest, if any, on such Securities and Coupons, if any, when such
payments are due, (B) the Company's obligations with respect to such
Securities and Coupons, if any, under Sections 404 and 405 (insofar as
applicable to Securities of such series), 502, 1102 and 1103 (last
paragraph only) and the Company's obligations to the Trustee under Section
707, (C) the rights of Holders of Securities of any series with respect to
the currency or currency units in which they are to receive payments of
principal, premium, if any, and interest, if any, and (D) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, will
survive such discharge. The Company will reimburse the trust fund for any
loss
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49
suffered by it as a result of any tax, fee or other charge imposed on
or against deposited U.S. Government Obligations or Foreign Government
Securities, as the case may be, or any principal or interest paid on such
obligations, and, subject to the provisions of Section 707, will indemnify
the Trustee against any claims made against the Trustee in connection with
any such loss.
"Foreign Government Securities" means, with respect to Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (i) direct obligations of the government that issued or
caused to be issued such currency for the payment of which obligations its
full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such
government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case
under clause (i) or (ii), are not callable or redeemable at the option of
the issuer thereof.
"U.S. Government Obligations" means: (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States. In either case under (i) or (ii) such obligations shall not
be callable or redeemable at the option of the issuer thereof.
ARTICLE SIX
Remedies
SECTION 601. Events of Default. "Event of Default" with respect to any
series of Securities means each one of the events specified below in this
Section 601, unless it is either inapplicable to a particular series or is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Medium-Term Debt Securities Certificate establishing such
series of Securities:
(1) default in the payment of any installment of interest upon any of
the Securities of such series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on
any of the Securities of such series, as and when the same shall become due
and payable (subject to clause (3) below) either at maturity, upon
redemption, by declaration or otherwise; or
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(3) default in the making of any payment for a sinking, purchase or
analogous fund provided for in respect of such series of Securities, as and
when the same shall become due and payable, and continuance of such default
for a period of 30 days; or
(4) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series, this Indenture or any supplemental indenture
applicable to such series, for a period of 60 days after the date on which
written notice of such failure requiring the Company to remedy the same and
stating that such notice is a "Notice of Default" hereunder, shall have
been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities of such series at the time
Outstanding; or
(5) default by the Company or any Subsidiary of the Company in the
payment of the principal of or interest on any mortgage, agreement or other
instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed (other than
Non-Recourse Debt of a Non-Recourse Subsidiary) in excess of $20,000,000 in
the aggregate of the Company and any Subsidiary of the Company, whether
such indebtedness now exists or shall hereafter be created resulting in
such indebtedness becoming or being declared due and payable, and such
acceleration shall not have been rescinded or annulled within 10 days after
written notice of such acceleration has been received by the Company or
such Subsidiary; or
(6) entry in a court of competent jurisdiction of a final judgment for
the payment of $20,000,000 or more rendered against the Company or any
Subsidiary of the Company and such judgment is not fully covered by
insurance or not discharged or stayed within 90 days after (i) the date on
which the right to appeal thereof has expired if no such appeal is
commenced, or (ii) the date on which all rights to appeal have expired or
been extinguished; or
(7) commencement by the Company of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or consent by the Company to the entry of an order
for relief against it in an involuntary case, or consent by the Company to
the appointment of a Custodian of the Company for all or substantially all
of its property, or any general assignment by the Company for the benefit
of its creditors; or
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(8) entry by a court of competent jurisdiction of an order or decree
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect that is for relief against the
Company in an involuntary case, or appoints a Custodian of the Company for
all or substantially all of the Company's property, or orders the
liquidation of the Company, and in each case such order or decree remains
unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to Securities of
that series.
No Event of Default with respect to a single series of indebtedness
issued under this Indenture necessarily constitutes an Event of Default with
respect to any other series of indebtedness issued hereunder.
SECTION 602. Acceleration. If an Event of Default with respect to the
Securities of any series at the time Outstanding occurs and is continuing on a
series, the Trustee by written notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of that series
or in the case of an Event of Default specified in Clause (5) or (6) of Section
601, of all series (voting as a class) with respect to which such Event of
Default has occurred and is continuing by written notice to the Company and the
Trustee, may declare to be due and payable immediately (i) 100% of the principal
amount (or, if the Securities of that Series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of the Securities of the series and (ii) accrued interest
on the Securities of the series. Upon such declaration, such amount of principal
and interest shall be due and payable immediately. The Holders of a majority in
principal amount of the series by notice to the Company may rescind an
acceleration and its consequences if all existing Events of Default on the
series (except nonpayment of principal that has become due solely because of the
acceleration) have been cured or waived and if the rescission would not conflict
with any judgment or decree.
SECTION 603. Other Remedies. If an Event of Default occurs and is
continuing on a series, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect, subject to Section 602, the payment
of principal of or interest on the Securities of the series or to enforce the
performance of any provision of the Securities or this Indenture applicable to
the series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All remedies are cumulative.
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52
SECTION 604. Waiver of Existing Defaults. Subject to Section 1002, and
unless a Board Resolution or Supplemental Indenture otherwise provides, the
Holders of a majority in principal amount of a series by notice to the Trustee
may consent to the waiver of a past or existing default or Event of Default on
the series and its consequences, except a default in the payment of principal or
premium, if any, or interest on the Securities. When a default or Event of
Default is waived, it is cured. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 605. Control by Majority. The Holders of a majority in
principal amount of a series may 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 it under this Indenture with respect to the series. The
Trustee, however, subject to Section 703, may refuse to follow any direction
that conflicts with law or this Indenture, that is unduly prejudicial to the
rights of another Holder of a Security, or that would involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders, pursuant to
the provisions of this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against all
costs, expenses and liabilities that may be incurred therein or thereby.
SECTION 606. Limitation on Suits. A Holder of a series may not pursue
any remedy with respect to this Indenture or the Securities of the series
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default on the series;
(2) the Holders of at least 25% in principal amount of the series or,
in the case of an Event of Default specified in Clause (5) or (6) of
Section 601, of all series (voting as a class) with respect to which such
Event of Default has occurred and is continuing make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity,
satisfactory to the Trustee, against any loss, costs, liability or expense
incurred as a result of the Trustee's compliance with the request of the
Holders;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in principal
amount of the series or, in the case of an Event of Default specified in
Clause (5) or (6) of Section 601, of all series (voting as a class) with
respect to which such Event of Default has occurred and is continuing do
not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
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A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 607. Rights of Holders To Receive Payments. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal (and premium, if any) of and (subject to Section
406) interest on the Security or any Coupon, on or after the respective due
dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 608. Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 601 (1) or (2) occurs and
is continuing on a series, the Trustee, subject to Section 602, may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid on the series
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel have been
made.
SECTION 609. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company and its creditors or property.
Nothing herein shall be deemed to authorize the Trustee to authorize or consent
to or accept on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 610. Priorities. If the Trustee collects any money, securities
or other property for a series pursuant to this Article, it shall pay out the
money in the following order:
FIRST: to the Trustee for all amounts due it under Section 707;
SECOND: to Holders of the series for amounts due and unpaid on the
Securities for principal (and premium, if any) and interest, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities and Coupons, if any, for principal and
interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 611. 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 or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess
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54
reasonable costs, including reasonable attorney's fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 607 or a suit by
Holders of more than 25% in principal amount of the Outstanding Securities of
the series.
SECTION 612. 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 613. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever muted, 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 SEVEN
The Trustee
SECTION 701. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing on Securities of any series, the Trustee shall
exercise its 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.
(b) Except during the continuance of an Event of Default on Securities
of any series:
(1) The Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the
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requirements of this Indenture. The Trustee, however, shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 605.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section.
(f) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(g) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
SECTION 702. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officers' Certificate and/or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
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56
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care, provided
that the Company's rights or remedies against any agent shall not be
compromised.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any Holder pursuant to this Indenture, unless such Holder 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.
SECTION 703. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate thereof with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, must comply with Sections 710 and 711.
SECTION 704. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities of any series
and it shall not be responsible for any statement in the Securities of any
series other than its certificate of authentication.
SECTION 705. Notice of Defaults. If a default occurs and is continuing
on Securities of any series and if it is actually known to the Trustee or the
Trustee has received written notice thereof, the Trustee shall transmit to each
Holder of Securities of such series notice as provided in Section 106 of the
default within 90 days after it occurs. Except in the case of a default in
payment of principal of (or premium, if any, on) or interest on any Security of
a series or in the payment of any sinking fund installment with respect to
Securities of a series, the Trustee may withhold the notice if and so long as
the board of directors of the Trustee, the executive or any trust committee of
such board and/or responsible officers of the Trustee in good faith determine(s)
that withholding the notice is in the interest of the Securityholders of the
series; provided, further, that in the case of any default of the character
specified in Section 601(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence of
such default.
SECTION 706. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with May 15, 1996, the Trustee shall mail to each Holder a
brief report dated as of May 15 that complies with Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange, if any, on which the Securities are
listed. The Company will notify the Trustee when Securities are listed on any
stock exchange.
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57
SECTION 707. Compensation and Indemnity. The Company shall pay the
Trustee from time to time such compensation for its services as is separately
agreed upon by the Company and the Trustee. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred by it. Such expenses shall include, but shall not be
limited to, the reasonable compensation, expenses and disbursements of the
Trustee's agents and counsel. The Company shall indemnify the Trustee against
any loss or liability or expenses arising out of or incurred by it in connection
with the administration of this trust and its duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company need not reimburse any expenses or indemnify
against any loss or liability incurred by the Trustee as a result of its
negligence or willful misconduct.
The indemnities contained in this Section 707 shall survive the
termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 601(7) or (8) occurs, the expenses and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 708. Replacement of Trustee. (a) The Trustee may resign upon
30 days notice to the Company. The Holders of a majority in principal amount of
the Outstanding Securities of any series may remove the Trustee with respect to
such series of Securities upon 30 days notice to the removed Trustee and may
appoint a successor Trustee with the Company's consent. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 710;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately thereafter,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall
become effective and the successor Trustee shall have all the rights, powers
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58
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder of the series of Securities for which
such successor Trustee will act.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of such outstanding series of
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 710, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such retiring 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.
SECTION 709. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 710. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirements of Section 310(a)(1) of the
Trust Indenture Act.
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59
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any particular series of
Securities other than that series.
SECTION 711. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 712. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or Coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be made
at the Conversion Rate (as defined below) as in effect on the date the Company
shall make payment to any Person in satisfaction of such judgment. If pursuant
to any such judgment, conversion shall be made on a date other than the date
payment is made and there shall occur a change between such Conversion Rate and
the Conversion Rate as in effect on the date of payment or distribution, the
Company agrees to pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is the amount in such other currency or currency
unit which, when converted at the Conversion Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Security
or Coupon. Any amount due from the Company under this Section 712 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Security or
Coupon so that in any event the Company's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in such
currency or currency unit. In no event, however, shall the Company be required
to pay more in the currency or currency unit stated to be due hereunder or under
such Security or Coupon.
For purposes of this Section 712, "Conversion Rate" shall mean, as of
any date, for any currency or currency unit into which an amount due hereunder
or under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not available for any
reason with respect to one or more currencies or currency units for which a
Conversion Date is required, the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recant available date, or quotations
from one or more major banks in New York City or in the country of issue of the
currency in question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if
there is more than one market for dealing in a currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit
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60
would, as determined in its sole discretion and without liability on the part of
the Exchange Rate Agent, purchase such currency or currency unit in order to
make payments in respect of such securities. If there does not exist a quoted
exchange rate in any currency or currency unit (the "First Currency") for
another currency unit (the "Second Currency"), then the Conversion Rate for the
Second Currency shall be equal to an equivalent amount in the First Currency
obtained by converting the Specified Amount of each Component Currency of the
Second Currency into the First Currency at the Conversion Rate (determined as
provided above) for each such Component Currency on such date (or, if the First
Currency is a currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each Component
Currency of the Second Currency into the Specified Amount of each Component
Currency of the First Currency at the Conversion Rate (determined as provided
above) for each such Component Currency on such date).
SECTION 713. 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 or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 405, 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 having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority or the equivalent foreign authority, in the case of an Authenticating
Agent who is not organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia. 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 such 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 such Authenticating Agent.
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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 mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. 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 Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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 herein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By
---------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
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62
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Communication by Holders with Other Holders. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
SECTION 802. Reports by Trustee. The Trustee shall report to the
Holders as set out in Section 706 of this Indenture.
SECTION 803. Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and reports, and such summaries thereof and copies of portions thereof, as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after the
same shall be so required to be filed with the Commission. The Company shall
comply with the provisions of ss. 314(a) of the Trust Indenture Act.
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any state or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee in form satisfactory to the Trustee, the due and punctual payment
of the principal of, and premium, if any, and interest, if any, on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both,
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63
would become an Event of Default, shall have occurred 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 or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 902. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 901, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and shall be subject to the obligations and restrictions
hereunder with the same effect as if such successor corporation had been named
as the Company herein all without any further act or deed on the part of such
successor corporation being required; and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this instrument or any successor
corporation which shall have theretofore become such in the manner prescribed in
Section 901) shall be discharged from all liability under this Indenture and in
respect of the Securities and may be dissolved and liquidated.
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or pursuant
to 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 corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(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;
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64
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons; to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities
(if permitted by applicable laws and regulations), to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations; provided that any such addition or change shall
not adversely affect the interests of the Holders of Securities of any
series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series as
permitted by Sections 202 and 301;
(7) 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 708(b);
(8) if allowed under applicable laws and regulations, to permit
payment in the United States of principal, premium or interest on Bearer
Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of one or
more series in addition to or in place of certificated Securities;
(10) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; or
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65
(11) to make any other provisions with respect to matters or questions
arising under this Indenture; provided such other provisions as may be made
shall not adversely affect the interests of the Holders of outstanding
Securities of any series in any material respect.
SECTION 1002. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to 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 without the consent of the Holder
of each outstanding Security of all series affected thereby shall
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
602, or change any Place of Payment where, or the currency, currencies or
currency unit or units in which, any Security or any premium or the
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 affect
adversely the terms, if any, of conversion of any Security into stock or
other securities of the Company or of any other corporation,
(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,
(3) change any obligation of the Company, with respect to Outstanding
Securities of a series, to maintain an office or agency in the places and
for the purposes specified in Section 1102 for such series, or
(4) modify any of the provisions of this Section, Section 604 or
Section 1107, except to increase any such percentage or to provide with
respect to the Securities of any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on the
consent
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66
of the Holders of a specified percentage of the aggregate principal amount
of Outstanding Securities of such series (which provision may be made
pursuant to Section 202 or Section 301, as the case may be, without the
consent of any Holder) 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 1107, or the deletion of this proviso,
in accordance with the requirements of Section 708(b) and 1001(7).
For purposes of this Section 1002, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
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 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive (in addition to the opinion
which the Trustee is entitled to receive pursuant to Section 202), and (subject
to Section 701) shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate 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, immunities or liabilities under this
Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
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67
SECTION 1005. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 1006. 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 ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities and Coupons,
if any, that it will duly and punctually pay the principal of (and premium, if
any, on) and interest, if any, on the Securities and Coupons, if any, of that
series in accordance with the terms of the Securities and Coupons, if any, of
such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for such series an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this indenture may be served. If Securities of a series are
issuable as both Registered or Bearer Securities or only as Bearer Securities,
the Company will maintain (A) in the Borough of Manhattan, The City of New York,
an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
proviso contained in the last sentence of this first paragraph of Section 1102
(and not otherwise), (B) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related Coupons
may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1108); provided, however, that if the Securities of that series are listed on
any stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in any required city
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located outside the United States, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and the Holders of
the location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency in respect of any series of Securities or shall fall to furnish the
Trustee with the address thereof, such presentations and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1108) at the London office
of the Trustee (or an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, that, if the Securities
of a series are denominated and payable in Dollars, payment of principal of and
premium, if any, and interest, if any, on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1108) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate 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 accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1103. 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
(and premium, if any, on) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the principal (and premium, if any,
on) or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any, on) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any, on) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any, on) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest, if any, on any Security or Coupon of any series that
remains unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be repaid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security and Coupons, if any, 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; and 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
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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 herein, 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 1104. Restrictions on Secured Debt. The Company will not
itself, and will not permit any Restricted Subsidiary to, incur, issue, assume,
or guarantee any Debt, whether or not evidenced by negotiable instruments or
securities, secured after the date hereof by Mortgage on any Principal Property
of the Company or any Restricted Subsidiary or any shares of Capital Stock of or
Debt of any Restricted Subsidiary, without effectively providing that all the
Securities Outstanding (together with, if the Company shall so determine, any
other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to any of the Securities) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate amount of all such secured Debt of
the Company and its Restricted Subsidiaries (excluding any Debt secured by
Mortgages permitted to be incurred by clauses (a) through (k) below) would not
exceed the Applicable Percentage of Consolidated Net Assets; provided, however,
that this Section shall not apply to, and there shall be excluded from secured
Debt in any computation under this Section, Debt secured by:
(a) any Mortgage if an amount of cash equal to the net proceeds of the
Debt secured by such Mortgage is used within 12 months of the creation,
incurrence or assumption of such Mortgage to (i) acquire additional
property or assets (or to make investments in persons who, after giving
effect to such investments, will become Subsidiaries of the Company), (ii)
retire debt which is pari passu with the Securities (provided that in
connection with any such retirement, any related loan commitment or the
like shall be reduced in an amount equal to the principal amount so
retired) or (iii) make an offer to purchase the Securities at 100% of the
principal amount thereof, plus accrued interest, if any, to the date of
purchase;
(b) Existing Mortgages;
(c) Mortgages on property or assets of any person existing at the time
such person becomes a Restricted Subsidiary or merges into or consolidates
with the Company or a Restricted Subsidiary;
(d) Mortgages on property or assets or shares of stock or Debt
existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary;
(e) Mortgages on property or assets or shares of stock or Debt to
secure the financing of the acquisition, construction, alteration or
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improvement of property or assets of the Company or any Restricted
Subsidiary of the Company (or of persons who, after giving effect to such
financing, will become Restricted Subsidiaries), provided that such
Mortgages are created not later than 18 months after such acquisition or,
in the case of construction, alteration or improvement of property or
assets, the later of the completion thereof or the commencement of the
commercial operation of such property or assets;
(f) Mortgages in favor of the Company or any Restricted Subsidiary;
(g) Mortgages in favor of or required by federal, state or local
governmental authorities or political subdivisions thereof, including any
department or instrumentality thereof, and any other Mortgages incurred or
assumed in connection with the issuance of any industrial revenue or
similar bonds;
(h) Mortgages on property or assets of, or on any shares of stock or
other equity interest in, a Foreign Subsidiary to secure Debt of a Foreign
Subsidiary, or a Non-Recourse Subsidiary to secure Non-Recourse Debt;
(i) Mortgages to secure Debt of joint ventures in which the Company or
a Subsidiary of the Company has an interest, to the extent such Mortgages
are on property or assets of or equity interests in such joint ventures;
(j) Mortgages on current assets to secure Debt incurred for working
capital purposes, provided that such Debt matures no later than 18 months
from the date of incurrence;
(k) Mortgages securing judgments or appeal bonds with respect to
amounts being contested in good faith; and
(l) any extension, renewal or replacement, as a whole or in part, of
any Mortgage referred to in the foregoing clauses (a) to (k), provided,
however, that (i) such extension, renewal or replacement Mortgage shall be
limited to all or a part of the same property or assets that secured the
Mortgage being extended, renewed or replaced and (ii) the principal amount
(or, if such Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof,
such lesser amount) of the Debt secured by such extended, renewed or
replaced Mortgage does not exceed the principal amount (or, if such Debt
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration or maturity
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thereof, such lesser amount) of Debt which was secured by the Mortgage
being extended, renewed or replaced (plus the premiums and reasonable
expenses incurred in connection therewith).
SECTION 1105. Restrictions on Sale and Leaseback Transactions. The
Company will not itself, and will not permit any Restricted Subsidiary to, enter
into any transaction after the date hereof with any Person, providing for the
leasing by the Company or a Restricted Subsidiary of any Principal Property
which has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person (herein referred to as a "Sale and Leaseback
Transaction") unless:
(a) the Company or such Restricted Subsidiary would, at the time of
entering into the Sale and Leaseback Transaction, be entitled to incur Debt
secured by a Mortgage on the Principal Property to be leased in an amount
at least equal to the Attributable Debt in respect of such transaction
without equally and ratably securing the Securities pursuant to Section
1104; or
(b) the proceeds of the sale of the Principal Property to be leased
are at least equal to the fair value of such Principal Property (the amount
of such proceeds, if other than in cash, to be determined by the chief
financial or accounting officer of the Company, whose determination shall
be conclusive) and an amount in cash equal to the net proceeds are applied,
within 12 months of the effective date of such transaction, to (i) acquire
additional assets (or to make investments in entities which, after giving
effect to such investment, will become Restricted Subsidiaries), (ii)
retire Debt which is pari passu with the Securities (provided that in
connection with any such retirement, any related loan commitment or the
like shall be reduced in an amount equal to the principal amount so
retired) or (iii) offer to purchase the Securities at 100% of the principal
amount thereof, plus accrued interest, if any, to the date of purchase; or
(c) the lease in such Sale and Leaseback Transaction is for a period,
including renewal rights, of not in excess of 36 months; or
(d) the lease in such Sale and Leaseback Transaction is a lease of
Principal Property entered into within 18 months from the acquisition of
such Principal Property or the transaction by which the person owning such
Principal Property became a Restricted Subsidiary, or in the case of the
construction, alteration or improvement of Principal Property, the later of
the completion of the construction, alteration or improvement of such
Principal Property or the commencement of commercial operation of the
Principal Property; or
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(e) such Sale and Leaseback Transaction is entered into between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.
SECTION 1106. Limitation on Affiliate Transactions. Neither the
Company nor any of its Subsidiaries shall sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance
or guaranty with, or for the benefit of, an Affiliate of the Company (other than
a Subsidiary) (an "Affiliate Transaction") having a value, or for consideration
having a value, in excess of $20,000,000 individually or in the aggregate unless
the Board of Directors of the Company shall determine that the terms of such
Affiliate Transaction are no less favorable to the Company or such Subsidiary
than those which might be obtained at the time of such Affiliate Transaction
from persons who are not Affiliates. The restrictions of this Section 1106 are
not applicable to the payment of reasonable and customary fees to directors of
the Company who are not employees, the payment of compensation to officers of
the Company or any transaction between or among any of the Company and its
Subsidiaries.
SECTION 1107. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, stating
that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under such officer's
supervision; and
(2) to such officer's knowledge, based on such review, the Company has
fulfilled all its obligations, and has complied with all conditions and
covenants, under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such obligation, condition or covenant,
specifying each such default known to him and the nature and status
thereof. For purposes of this Section 1106, compliance shall be determined
without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 1108. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 1104 or Section 1105 if before the time for such compliance the Holders
of not less than a majority in principal amount of the Outstanding Securities of
all series affected thereby shall, by Act of such Holders (acting as one class),
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.
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SECTION 1109. Additional Amounts. If the Securities of a series
provide for the payment of additional amounts, the Company will pay to the
Holder of any Security of such series or any related Coupon additional amounts
as provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related Coupons who are United
States Aliens (as defined in such Securities) without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such Payments to such Holders of Securities or Coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. 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
202 or Section 301, as the case may be, for Securities of any series) in
accordance with this Article.
SECTION 1202. Election To Redeem; Notice to Trustee. If the Company
shall desire to exercise the right to redeem all, or, as the case may be, any
part of the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the
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Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1203. Selection by Trustee of Securities To Be Redeemed. If
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple of $1,000 in excess thereof, except as otherwise
specified as contemplated by Section 202 or Section 301, as the case may be) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any 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 1204. Notice of Redemption. Notice of redemption shall be
given not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date,
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the registration and, if any, CUSIP numbers
of the Securities of such series to be redeemed, and, if only Bearer Securities
of any series are to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities, the last date on which exchanges of
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Bearer Securities for Registered Securities not subject to redemption may be
made. In case any Security, of any series, is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the Redemption Date, upon
surrender of such Security and any Coupons appertaining thereto, a new Security
or Securities of such series in principal amount equal to the unredeemed portion
thereof and with appropriate Coupons will be issued, or, in the case of
Registered Securities providing appropriate space for such notation, at the
option of the Holders, the Trustee, in lieu of delivering a new Security or
Securities as aforesaid, may make a notation on such Security of the payment of
the redeemed portion thereof.
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 1205. Deposit of Redemption Price. On or before the opening of
business on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own paying Agent,
segregate and hold in trust as provided in Section 1103) an amount of money in
the relevant currency (or a sufficient number of currency units, as the case may
be) 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 1206. 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 and the Coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
otherwise provided in Section 1102) and, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, only upon
presentation and surrender of Coupons for such interest; provided further that,
unless otherwise specified as contemplated by Section 202 or Section 301, as the
case may be, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 406.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant Coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company
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and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying Agent
any such missing Coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by Coupons shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1102) and, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, only upon
presentation and surrender of those Coupons.
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 1207. 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 make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities (with appropriate Coupons) of the same series and Stated
Maturity, 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 or, in the case of Registered
Securities providing appropriate space for such notation, at the option of the
Holder, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the payment of the redeemed
portion thereof.
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 202 or Section
301, as the case may be, for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1302. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities (including all unmatured
Coupons appertaining thereto) of a series (other than any previously called for
redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and the
outstanding principal amount thereof credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1302 and
will also deliver to the Trustee any Securities (including all unmatured Coupons
appertaining thereto) to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1203 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 1204. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1206 and 1207.
IN WITNESS THEREOF, 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.
MANOR CARE, INC.,
By /s/ James H. Rempe
----------------------------
Name: James H. Rempe
Title: Vice President and
Secretary
THE CHASE MANHATTAN BANK, as Trustee,
By /s/ Andrew M. Deck
----------------------------
Name: Andrew M. Deck
Title: Senior Trust Officer
<PAGE>
Exhibit A
(Form of Fixed Rate
Security with and without Optional
Redemption Provision)
(Form of Face of [Note] (1)
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](2)
MANOR CARE, INC.
% [Note] Due
No.: $
CUSIP No.:
MANOR CARE, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to______________ or
registered assigns, the principal sum of _____________ Dollars, at the office or
agency of the Company in the Borough of Manhattan, The City and State of New
York, ___________________, in such coin on or currency of the United States of
America as at the time of payment shall be legal tender for the payments of
public and private debts, and to pay interest, semi-annually on ______________
and _____________ of each year, on said principal sum at said office or agency,
in like coin or currency, at the rate of ________% per annum, from the
____________ or the _____________, as the case may be, next preceding the date
of this [Note] to which interest has been paid, unless the date hereof is a date
to which interest has been paid, in which case from the date of this [Note], or
unless no interest has been paid on the [Notes] due (as defined on the reverse
hereof), in which case from ______________ until payment of said principal sum
has been made or duly provided for. Notwithstanding the foregoing, if the date
hereof is after _______________ or _____________ as the case may be,
- --------
1 Bracketed references to "Note" or "Notes" should be changed to reflect the
designation of the series of Securities being issued.
2 The bracketed language is to be included if the Securities are included
within DTC's book-entry system.
<PAGE>
2
and before the following _____________ or ____________, this [Note] shall bear
interest from such ________________ or ______________, provided, however, that
if the Company shall default in the payment of interest due on such
_____________ or _____________, then this [Note] shall bear interest from the
next preceding ______________ or _______________ to which interest has been
paid, or, if no interest has been paid on the [Notes] due _________, from
______________. The interest so payable on any ______________ or ______________
will subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this [Note] is registered at
the close of business on such________________ or _______________, as the case
may be, next preceding such _______________ or _______________, unless the
Company shall default in the payment of interest due on such interest payment
date, in which case such defaulted interest, at the option of the Company, may
be paid to the person in whose name this [Note] is registered at the close of
business on a special record date for the payment of such defaulted interest
established by notice to the registered holders of [Notes] not less than 10 days
preceding such special record date or may be paid in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
[Notes] due may be listed. Payment of interest may, at the option of the
Company, be made by check mailed to the registered address of the person
entitled thereto.
Reference is made to the further provisions of thus [Note] set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This [Note] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: MANOR CARE, INC.
by
--------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the Series
designated herein issued under the
within-mentioned Indenture.
by
-------------------------------
[NAME OF TRUSTEE], as Trustee
by
--------------------------------
Authorized Signatory
<PAGE>
4
(Form of Reverse of [Note])
This [Note] is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (hereinafter called the
"Securities), of the series hereinafter specified, all issued or to be issued
under an indenture dated as of November [ ], 1996 (hereinafter called the
"Indenture"), as trustee (hereinafter called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the relative rights and duties thereunder of the Trustee, the
Company and the holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest at different
rates, may be subject to different redemption provisions, may be subject to
different sinking, purchase or analogous funds, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided. This [Note] is one of a series designated as the ______% [Notes] due
of the Company (hereinafter called the "[Notes] due _______") issued under the
Indenture, limited in aggregate principal amount to $-----------.
In case an Event of Default with respect to the [Notes] due
_______________, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof together with interest accrued thereon, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (acting as one class) to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Securities of such series to be
affected; provided, however, that no such supplemental indenture shall, among
other things, (1) change the fixed maturity of the principal of, or any
installment of principal of or interest on, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) impair the right to institute suit for the
enforcement of any such payment on or after the fixed maturity thereof (or, in
the case of redemption, on or after the redemption date); (iv) 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 the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (v) change any obligation of the
Company, with respect to outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified in the Indenture
for such series; or (vi) modify any of the foregoing provisions or the
provisions for the waiver of certain covenants and defaults, except to increase
any applicable percentage of the aggregate principal amount of outstanding
Securities the consent of the holders of which is required or to provide with
respect to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the holders of a
specified percentage of the aggregate principal
<PAGE>
5
amount of outstanding Securities of such series or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the holder of each outstanding Security affected thereby. It is also provided in
the Indenture that the holders of a majority in aggregate principal amount of
the Securities of a series at the time outstanding may on behalf of the holders
of all the Securities of such series waive any past default under the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, premium, if any, or interest, if any, on any
Security of such series or in respect of a covenant or provision which cannot be
modified without the consent of the Holder of each outstanding Security of the
series affected. Any such consent or waiver by the holder of this [Note] shall
be conclusive and binding upon such holder and upon all future holders and
owners of the [Note] and any [Notes] due _______________ which may be issued in
exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this [Note] or such other [Notes] due ____________.
No reference herein to the Indenture and no provision of this [Note]
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this [Note] at the place, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Indenture permits the Company to Discharge its obligations with
respect to the [Notes] due _______________ on the 91st day following the
satisfaction of the conditions set forth in the Indenture, which include the
deposit with the Trustee of money or U.S. Government Obligations or a
combination thereof sufficient to pay and discharge each installment of
principal of (including premium, if any, on) and interest, if any, on the
outstanding [Notes] due ___________.
If the Company shall, in accordance with Section 901 of the Indenture,
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, the successor
shall succeed to, and be substituted for, the Person named as the "Company" on
the face of this [Note], all on the terms set forth in the Indenture.
The [Notes] due _______________ are issuable in registered form
without coupons in denominations of $1,000 or any integral multiple thereof. In
the manner and subject to the limitations provided in the Indenture, but without
the payment of any service charge, [Notes] due _______________ may be exchanged
for an equal aggregate principal amount of [Notes] due _______________ of other
authorized denominations at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, the City and State of New York.
[The [Notes] due _______________ may be redeemed as a whole, or from
time to time in part, at the option of the Company at any time upon mailing a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to the holders of the [Notes] due _______________ at
their last registered addresses, all as provided in
<PAGE>
6
the Indenture, at the following optional redemption prices (expressed in
percentages of the principal amount), together in each case with accrued
interest to the date fixed for redemption.
If redeemed during the twelve-month period beginning
Year Percentage
---- ----------
]1
Upon due presentment for registration of transfer of this [Note] at
the office or agency of the Company for such registration in the Borough of
Manhattan, the City and State of New York, a new [Note] or [Notes] of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
Prior to due presentment for registration of transfer of this [Note],
the Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner of this [Note]
(whether or not this [Note] shall be overdue) for the purpose of receiving
payment of the principal of, premium, if any, and interest on this Note, as
herein provided, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums paid, effectively
satisfy and discharge liability for moneys payable on this [Note].
No recourse for the payment of the principal of, premium, if any, or
interest on this [Note], or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
[Note], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
payment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless otherwise defined in this [Note], all terms used in this [Note]
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
- --------
1 Bracketed language to be included in Securities redeemable at the option of
the Company.
<PAGE>
7
THIS [NOTE] SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
<PAGE>
EXHIBIT B
[FORMS OF CERTIFICATION]
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities are held by a
financial institution that has agreed to comply with the requirements of Section
1650(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder and that it is not purchasing for offer to resell or
for resale inside the United States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all such Securities.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
<PAGE>
2
Dated: ___________, 19__
[To be dated on or after
____________, 19__ (the date
determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
-----------------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $_________ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Date:
[To be dated no earlier
than the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By
-----------------------------------
<PAGE>
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient
description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Date: ____________, 19__
[To be dated on or after the
relevant Interest Payment Date]
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as Operator
of the Euro-clear System]
[CEDEL S.A.]
By
-----------------------------------
<PAGE>
EXHIBIT B.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE)
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient
description of Securities]
This is to certify that as of the Interest Payment Date on [Insert
Date] and except as provided in the third paragraph hereof, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) such United
States person is a financial institution within the meaning of Section
1.165-12(c)(1)(v) of the United States Treasury Regulations purchasing for its
own account or has acquired such Securities through a financial institution and
(ii) such Securities are held by a financial institution that has agreed to
comply with the requirements of Section 1650(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder and
that it did not purchase for offer to resell or for resale inside the United
States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S. $__________
principal amount of the above-captioned Securities appearing in your books as
being held for our account as to which we are not yet able to certify and as to
which we understand interest cannot be credited unless and until we are able to
so certify.
<PAGE>
2
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date: ___________, 19__
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
---------------------------------------------
(Authorized Signature)
Name:
Title:
<PAGE>
EXHIBIT B.5
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
confirmation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 1650(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
Exhibit 4.2
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of CEDE & CO., or such other name as requested
by an authorized representative of The Depository Trust Company, and any payment
is made to CEDE & CO. or such other entity, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, CEDE & CO., has an interest herein.
MANOR CARE, INC.
FX MEDIUM-TERM NOTE, SERIES A CUSIP NO.___
(Due from nine months to 30 years from date of issue)
(Fixed Rate)
[Form of Face]
The following summary of terms is subject to the information
set forth on the reverse hereof:
ORIGINAL ISSUE DATE:
OPTIONAL REDEMPTION: |_| YES |_| NO STATED MATURITY:
INITIAL REDEMPTION DATE: REDEMPTION PRICE, if
applicable: Initially __% of Principal
PRINCIPAL AMOUNT: $ Amount and declining by __% of the
Principal Amount on each anniversary of
SPECIFIED CURRENCY: the Initial Redemption Date until the
Redemption Price is 100% of the
Principal Amount.
AUTHORIZED DENOMINATIONS (If other than
$1,000 and any integral multiple
thereof):
OPTION TO ELECT PAYMENTS IN
U.S. DOLLARS: |_| YES |_| NO
FORM: |_| BOOK ENTRY
|_| CERTIFICATED
OPTION TO ELECT REPAYMENT: |_| YES |_| NO
INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST PAYMENT DATE[S]: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATE[S]: OPTIONAL INTEREST RESET: |_| YES |_| NO
U.S. DEPOSITARY: OPTIONAL EXTENSIONS OF
MATURITY |_| YES |_| NO
EXCHANGE RATE AGENT: EXTENSION PERIOD:
AMORTIZING NOTE: |_| YES |_| NO NUMBER OF EXTENSION PERIODS:
FINAL MATURITY DATE:
OTHER PROVISIONS: ANNEX ATTACHED |_| YES |_| NO
(and incorporated by reference herein)
<PAGE>
MANOR CARE, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns the principal sum set forth above, at the office or agency
of the Company in the Borough of Manhattan, The City and State of New York, on
the Stated Maturity specified above, and to pay interest thereon from and
including the Original Issue Date shown above or from and including the most
recent Interest Payment Date (as hereinafter defined) to which interest has been
paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates
shown above ("Interest Payment Dates"), commencing with the first such Interest
Payment Date next succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum specified above, until the principal
hereof is paid or made available for payment and on the Stated Maturity, and
interest shall accrue on any overdue principal and on any overdue installment of
interest (to the extent that the payment of such interest shall be legally
enforceable) at the rate per annum set forth above. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date set forth above
next preceding such Interest Payment Date. The first payment of interest on any
Note originally issued between a Regular Record Date and the related Interest
Payment Date will be made on the Interest Payment Date following the next
succeeding Regular Record Date to the Person in whose name this Note is
registered on such next succeeding Regular Record Date. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder (as defined in
such Indenture) on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed (after receipt of notice from the Company of a proposed
payment of defaulted interest) by the Trustee (as hereinafter defined), notice
whereof shall be given to Holders of Notes not less than 10 days preceding such
special record date or may be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of interest may, at the option of the
Company, be made by check mailed to the registered address of the person
entitled thereto. Notwithstanding the foregoing, interest payable at Maturity
shall be payable to the person to whom the principal is payable. Except as
otherwise provided for in the Indenture, interest on the Notes will be computed
and paid on the basis of a 360-day year of twelve 30-day months. If any Interest
Payment Date or the Stated Maturity for this Note is a day that is not a
Business Day, all payments to be made on such day will be made on the next
succeeding Business Day with the same force and effect as if made on the due
date, and no additional interest shall be payable as a result of such delayed
payment.
Payments of interest to be paid in U.S. dollars (other than
interest, and if this is an Amortizing Note, principal (if this is not a global
Note) payable at the Stated Maturity) will be made by mailing a check to the
Holder at the address of the Holder appearing in the Security Register as of the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account maintained by such Holder with a bank located in the United
States as designated by the Holder not less than 15 calendar days prior to the
Interest Payment Date.
Simultaneously with the election by the Holder to receive
payments in a Specified Currency other than U.S. dollars (by written request to
the Paying Agent as provided below), the Holder shall provide appropriate
payment instructions to the Trustee, and all such payments will be made in
immediately available funds to a bank account maintained by the Holder in the
country of the Specified Currency (or, with respect to ECUs, Brussels). If such
a payment with respect to this Note cannot be made by wire transfer because the
required designation has not been received by the Trustee on or before the
requisite date or for any other reason, a notice will be mailed to the Holder at
its registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation, such
payment will be made within 15 days of such receipt.
The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax, assessment
or governmental charge imposed upon the Holder of this Note. In the event that
payment is so made in accordance with the instructions of the Holder, such wire
transfer shall be deemed to constitute full and complete payment of such
interest and principal on this Note. If this is not a global Note, payment of
the principal, premium, if any, and interest payable at Maturity in respect of
this Note will be paid in immediately available funds upon surrender of this
Note accompanied by wire instructions at the principal office of the Trustee,
provided that this Note is presented in time for the Trustee to make such
payments in such funds in accordance with its normal procedures.
If this Note is a Book-Entry Note as specified above, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the U.S. Depositary or its nominee, the Company will cause payments of
principal of, premium, if any, and interest on such Book-Entry Notes to be made
to the U.S. Depositary or its nominee, as the case may be, by wire transfer to
the extent, in the funds and in the manner required by agreements with, or
regulations or procedures prescribed from time to time by, the U.S. Depositary
or its nominee, and otherwise in accordance with such agreements, regulations
and procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof: UNLESS
AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY TO A
NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF THE U.S. DEPOSITARY TO THE
U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY OR BY THE U.S.
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S. DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR U.S. DEPOSITARY.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: MANOR CARE, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
of the Series designated herein
issued under the within-mentioned
indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
-------------------------------
Authorized Officer
<PAGE>
[Form of Reverse]
MANOR CARE, INC.
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
SECTION 1. General. This Note is one of a duly authorized issue of
notes of the Company (herein called the "Notes"), constituting part of the
series of Securities (as defined in the Indenture hereinafter referred to)
designated on the face hereof (Securities of such series being herein called the
"Securities of this series"), all issued or to be issued under an indenture
dated as of November 22, 1996 (the "Indenture"), duly executed and delivered by
the Company to The Chase Manhattan Bank, as trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the respective rights
and duties thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities of this series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest at different
rates, may be subject to different redemption provisions, may be subject to
different sinking, purchase or analogous funds and may otherwise vary as in the
Indenture provided.
SECTION 2. Events of Default. In case an Event of Default (as defined
in the Indenture) with respect to the Securities of this series shall have
occurred and be continuing, the principal hereof together with accrued interest
thereon, if any, may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
SECTION 3. Supplemental Indentures. The Indenture contains provisions
permitting the Company and the Trustee, with the consent of the Holders of not
less than a majority in principal amount of the Securities at the time
outstanding of all series to be affected (acting as one class) to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or modifying in any manner
the rights of the Holders of the Securities or such series; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each outstanding Security affected thereby, among other things, (i) change the
Stated Maturity (as defined in the Indenture) of the principal of, or any
installment of principal of or interest on, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) 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 (as defined in the
Indenture)); (iv) 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 the Indenture or certain
defaults thereunder and their consequences) provided for in the Indenture; (v)
change any obligation of the Company, with respect to outstanding Securities of
a series, to maintain an office or agency in the places and for the purposes
specified in the Indenture for such series; or (vi) modify any of the foregoing
provisions or the provisions for the waiver of certain covenants and defaults,
except to increase any applicable percentage of the aggregate principal amount
of outstanding Securities the consent of the Holders of which is required or to
provide with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate principal amount of
outstanding Securities of such series or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby. It is also provided in
the Indenture that the Holders of a majority in aggregate principal amount of
the Securities of a series may on behalf of the Holders of all the Securities of
such series waive any past or existing default or Event of Default under the
Indenture with respect to such series and its consequences, except a default in
the payment of the principal of, premium, if any, or interest, if any, on any
Security of such series or in respect of a covenant or provision which cannot be
modified without the consent of the Holder of each outstanding Security of the
series affected. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and any Notes which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes. In addition, the Indenture contains provisions
permitting the Company, when authorized by or pursuant to a resolution of the
Company's Board of Directors, and the Trustee, at any time and from time to
time, without the consent of any Holders, to execute supplemental indentures for
any one of the following purposes: (i) to evidence the succession of another
corporation to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; (ii) to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities or to surrender any right or power herein conferred upon the Company;
(iii) to add any additional Events of Default with respect to all or any series
of the Securities; (iv) to add or change any of the provisions of the Indenture
as is necessary to facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal; (v) to change or eliminate any
of the provisions of the Indenture; provided that any such change or elimination
shall become effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture which is adversely
affected by such change in or elimination of such provision; (vi) to establish
the form or terms of Securities of any series as permitted by the Indenture;
(vii) to evidence and provide for the acceptance of appointment pursuant to the
Indenture of a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of the Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
pursuant to the Indenture by more than one Trustee; (viii) if allowed under
applicable laws and regulations, to permit payment in the United States of
principal, premium or interest on Bearer Securities or Coupons, if any; (ix) to
provide for the issuance of uncertificated Securities of one or more series in
addition to or in place of certificated Securities; (x) to cure any ambiguity or
to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein; or (xi) to make any other
provisions with respect to matters or questions arising under this Indenture;
provided such other provisions as may be made shall not adversely affect the
interests of the Holders of outstanding Securities of any series in any material
respect.
SECTION 4. Obligation of the Company Absolute. No reference herein to
the Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the place,
at the respective times, at the rate and in the coin or currency herein
prescribed.
SECTION 5. Discharge of Obligations. The Indenture permits the Company
to discharge its obligations with respect to the Notes on the 91st day following
the satisfaction of the conditions set forth in the Indenture, which include the
deposit with the Trustee of money or U.S. Government Obligations or a
combination thereof or, in the case of Securities, if any, denominated in a
Foreign Currency, Foreign Government Securities (as defined in the Indenture),
sufficient to pay and discharge each installment of principal of (including
premium, if any, on) and interest, if any, on the outstanding Notes.
<PAGE>
SECTION 6. Consolidation or Merger of the Company. If the Company
shall, in accordance with Section 901 of the Indenture, consolidate with or
merge into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, the successor shall succeed to, and
be substituted for, the Person named as the "Company" on the face of this Note,
all on the terms set forth in the Indenture.
SECTION 7. Authorized Denominations. The Notes are issuable in
registered form without coupons in denominations of $1,000 or any integral
multiple thereof. In the manner and subject to the limitations provided in the
Indenture, but without the payment of any service charge, Notes may be exchanged
for an equal aggregate principal amount of Notes of other authorized
denominations at the office or agency of the Company maintained for such purpose
in the Borough of Manhattan, The City and State of New York.
SECTION 8. Redemption. If so specified on the face hereof, this Note
may be redeemed at the option of the Company as a whole or from time to time in
part, on or after the date designated as the Initial Redemption Date on the face
hereof, at the redemption price specified on the face hereof, together with
unpaid interest accrued on the principal amount hereof to be redeemed to the
date of redemption, but interest installments that are due on or prior to the
date of redemption will be payable to the Holder of this Note of record at the
close of business on the relevant Regular Record Date referred to on the face
hereof, all as provided in the Indenture. The Company may exercise such option
by causing the Trustee to mail a notice of such redemption not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
SECTION 9. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at an office or agency of the Company for
such registration, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
subject to the limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection therewith.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided above, owners of beneficial
interests in this permanent global Note will not be entitled to receive physical
delivery of Notes in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture.
SECTION 10. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee and any agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the owner of this
Note (whether or not this Note shall be overdue) for the purpose of receiving
payment of the principal of, premium, if any, and interest on this Note, as
herein provided, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered Holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
SECTION 11. Waiver and Release of Liability. No recourse for the
payment of the principal of, premium, if any, or interest on this Note, or for
any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Note or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or role of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
SECTION 12. Payments. Interest on this Note will be payable on the
Interest Payment Date or Interest Payment Dates as specified on the face hereof
and, in either case, at Stated Maturity or earlier redemption or repayment.
Interest payments on each Interest Payment Date or date of Maturity
for this Note will include accrued interest from and including the Original
Issue Date or from and including the last date in respect of which interest has
been paid or duly provided for, as the case may be, to but excluding such
Interest Payment Date or date of Maturity, as the case may be.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on this Note if an Event of Default
has occurred with respect hereto or upon the giving of a notice of redemption).
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multicontributor pages of the Quoting Source for three (or two
if three are not available) major banks in The City of New York. The first three
(or two) such banks selected by the Currency Determination Agent which are
offering quotes
<PAGE>
on the Quoting Source will be used. If fewer than two such bid quotations are
available at 11:00 A.M., New York City time, on the second Business Day next
preceding the applicable payment date, such payment will be based on the Market
Exchange Rate as of the second Business Day next preceding the applicable
payment date. If the Market Exchange Rate for such date is not then available,
such payment will be made in the Specified Currency. As used herein, the
"Quoting Source" means Reuters Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that such service is not available,
Telerate Monitor Foreign Exchange Service, or if the Currency Determination
Agent determines that neither service is available, such comparable display or
other comparable manner of obtaining quotations as shall be agreed between the
Company and the Currency Determination Agent. All currency exchange costs
associated with any payment in U.S. dollars on this Note will be borne by the
Holder by deductions from such payment. Any currency determination agent (the
"Currency Determination Agent") with respect to this Note is specified on the
face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the Holder of this
Note.
All percentages resulting from any calculations under this Note will
be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of this Note will be rounded to the nearest
one-hundredth of a unit (with five one- thousandths being rounded upward) or
nearest cent (with one-half cent being rounded upward), as the case may be.
SECTION 13. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable at
the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, the
principal amount of this Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the repayment option by the Holder of this Note shall
be irrevocable, except that a Holder who has tendered this Note for repayment
may revoke any such tender for repayment by written notice to the Trustee
received prior to the close of business on the tenth calendar day prior to the
repayment date. The repayment option may be exercised by the Holder of this Note
for less than the entire principal amount of this Note provided that the
principal amount of this Note remaining outstanding after such repayment is an
authorized denomination. Upon such partial repayment, this Note shall be
cancelled and a new Note or Notes for the remaining principal amount hereof
shall be issued in the name of the Holder of this Note.
SECTION 14. Optional Interest Reset. If so specified on the face
hereof, the interest rate on this Note may be reset by the Company on the date
or dates specified on the face hereof (each an "Optional Interest Reset Date").
The Company may exercise such option by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to an Optional Interest
Reset Date. If the Company so notifies the Trustee of such exercise, the Trustee
will send, not later than 40 calendar days prior to each Optional Interest Reset
Date, by telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Company has elected to reset the interest rate, (ii)
such new interest rate and (iii) the provisions, if any, for redemption during
the period from such Optional Interest Reset Date to the next Optional Interest
Reset Date or, if there is no such next Optional Interest Reset Date, to the
Stated Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such higher interest rate to the Holder of this Note. Such notice shall be
irrevocable. All Notes with respect to which the interest rate is reset on an
Optional Interest Reset Date will bear such higher interest rate, whether or not
tendered for repayment as provided in the next paragraph.
<PAGE>
If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate of this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Company on such Optional Interest
Reset Date at a price equal to the principal amount hereof plus interest accrued
and unpaid thereon to such Optional Interest Reset Date. In order to obtain
repayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 13 for optional repayment except that the
period for delivery or notification to the Trustee shall be at least 25 but not
more than 35 calendar days prior to such Optional Interest Reset Date. If the
Holder has tendered this Note for repayment following receipt of a Reset Notice,
the Holder may revoke such tender for repayment by written notice to the Trustee
received prior to 5:00 P.M., New York City time, on the tenth calendar day prior
to such Optional Interest Reset Date.
SECTION 15. Optional Extension of Maturity. If so specified on the
face hereof, the Stated Maturity of this Note may be extended at the option of
the Company for the period or periods of from one to five whole years specified
on the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to this Note by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to the Stated
Maturity of this Note in effect prior to the exercise of such option (the
"Original Stated Maturity Date"). If the Company so notifies the Trustee of such
exercise, the Trustee will send, not later than 40 calendar days prior to the
Original Stated Maturity Date, by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) to the Holder of this Note, a
notice (the "Extension Notice") indicating (i) that the Company has elected to
extend the Stated Maturity of this Note, (ii) the new Stated Maturity, (iii) the
interest rate applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period, including the date or dates on
which or the period or periods during which and the price or prices at which
such redemption may occur during such Extension Period. Upon the Trustee's
sending of the Extension Notice, the Stated Maturity of this Note shall be
extended automatically and, except as modified by the Extension Notice and as
described in the next two paragraphs, this Note will have the same terms as
prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Company may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to send by telegram, telex, facsimile transmission, hand delivery or letter
(first class, postage prepaid) notice of such higher interest rate to the Holder
of this Note. Such notice shall be irrevocable. All Notes with respect to which
the Stated Maturity is extended will bear such higher interest rate for the
Extension Period, whether or not tendered for repayment as provided in the next
paragraph.
If the Company elects to extend the Stated Maturity of this Note, the
Holder will have the option to elect repayment of this Note by the Company on
the Original Stated Maturity Date at a price equal to the principal amount
hereof, plus interest accrued and unpaid thereon to such date. In order to
obtain repayment on the Original Stated Maturity Date, the Holder must follow
the procedures set forth under Section 13 for optional repayment, except that
the period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 calendar days prior to the Original Stated Maturity Date. A
Holder who has tendered this Note for repayment following receipt of an
Extension Notice may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth calendar
day prior to the Original Stated Maturity Date.
SECTION 16. Sinking Fund. Unless specified on the face hereof, the
Note will not be subject to a sinking fund.
SECTION 17. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event the principal amount hereof is declared to be due
and payable immediately by reason of an Event of Default or in the event of
redemption or repayment prior to the Stated Maturity hereof in lieu of the
principal amount due at the Stated Maturity hereof shall be the Amortized Face
Amount of this Note as of the date of declaration, redemption or repayment, as
the case may be. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the principal amount of this Note multiplied by the Issue Price (as
set forth on the face hereof) plus (b) that portion of the difference between
the dollar amount determined pursuant to the preceding clause (a) and the
principal amount hereof that has accreted at the Yield to Maturity (as set forth
on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) to such date of declaration,
redemption or payment, but in no event shall the Amortized Face Amount of this
Note exceed its principal amount.
SECTION 18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 19. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes. "Business Day" means any Monday, Tuesday,
Wednesday, Thursday or Friday that in The City of New York is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close; provided that with respect to a Specified Currency, such day is
also not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the principal financial center of the
country of such Specified Currency (or in the case of ECUs, is not a day
designated as an ECU Non-Settlement Day by the ECU Banking Association in Paris
or otherwise generally regarded in the ECU interbank market as a day on which
payments on ECUs shall not be made).
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 13 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 14 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 15 hereof. Specify the
denomination or denominations (which shall be $1,000 or an integral multiple
thereof in excess thereof or, if the Note is denominated in a currency other
than U.S. dollars, an Authorized Denomination) of the Note or Notes to be issued
to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
- --------------------------------------
Dated:
-------------------------------- -----------------------------------
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be repaid if amount Indicate address where check is to
to be repaid is less than the entire be sent, if repaid:
principal amount of this Note (principal
amount remaining must be an authorized
denomination) ___________________________________
$______________________________________ ___________________________________
(which shall be an integral multiple of
$1,000, or, if the Note is denominated
in a currency other than U.S. dollars,
of an amount equal to the integral
multiples referred to on the face hereof SOCIAL SECURITY OR OTHER
the face hereof under "Authorized TAXPAYER ID NUMBER
Denominations" (or, if no such reference
is made, an amount equal to the minimum __________________________________
Authorized Denomination)).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT Custodian
--------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------------------------
(State)
Additional abbreviations may also be used though not in the above
list.
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- ------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________ attorney to transfer said Note on the books of the Company,
with full power of substitution in the premises.
Dated:__________________________ _______________________________________
Signature
Sign exactly as name appears on the front
of this Note [SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust company or
by a member of the New York Stock
Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Exhibit 4.3
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of CEDE & CO., or such other name as requested
by an authorized representative of The Depository Trust Company, and any payment
is made to CEDE & CO. or such other entity, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, CEDE & CO., has an interest herein.
MANOR CARE, INC.
FL MEDIUM-TERM NOTE, SERIES A CUSIP NO.___
(Due from nine months to 30 years from date of issue)
(Floating Rate)
[Form of Face]
The following summary of terms is subject to the information set forth
on the reverse hereof:
REGISTERED NO. ORIGINAL ISSUE DATE:
OPTIONAL REDEMPTION: |_| YES |_| NO STATED MATURITY:
INITIAL REDEMPTION DATE:
REDEMPTION PRICE, if applicable:
Initially __% of Principal Amount and
declining by __% of the Principal
Amount on each anniversary of the
Initial Redemption Date until the
Redemption Price is 100% of the
Principal Amount.
PRINCIPAL AMOUNT:
SPECIFIED CURRENCY:
AUTHORIZED DENOMINATIONS (If other than
$1,000 and any integral multiple thereof):
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS:
|_| YES |_| NO
FORM: |_| BOOK ENTRY OPTION TO ELECT
|_| CERTIFICATED REPAYMENT: |_| YES |_| NO
INTEREST RATE BASIS: OPTIONAL REPAYMENT DATES:
INDEX MATURITY: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATES: OPTIONAL INTEREST RESET: |_|YES |_|NO
INITIAL INTEREST RATE: OPTIONAL INTEREST RESET DATES:
MAXIMUM INTEREST RATE: OPTIONAL EXTENSIONS OF
MATURITY |_|YES |_| NO
MINIMUM INTEREST RATE:
SPREAD: EXTENSION PERIOD:
SPREAD MULTIPLIER: NUMBER OF EXTENSION PERIODS:
RESET PERIOD: FINAL MATURITY DATE:
INTEREST RESET DATES: INDEXED NOTE
(See attached Annex): |_| YES |_| NO
OTHER PROVISIONS:
ANNEX ATTACHED |_| YES |_| NO
and incorporated herein by reference)
INTEREST DETERMINATION DATES:
INTEREST PAYMENT DATES:
CALCULATION AGENT:
EXCHANGE RATE AGENT:
AMORTIZING NOTE: |_| YES |_| NO
U.S. DEPOSITARY:
<PAGE>
MANOR CARE, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
or registered assigns the principal sum set forth above, at the office or agency
of the Company in Borough of Manhattan, The City and State of New York, on the
Stated Maturity specified above, and to pay interest thereon from and including
the Original Issue Date shown above or from and including the most recent
Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates shown
above ("Interest Payment Dates"), at the rate per annum determined in accordance
with the provisions on the reverse hereof, commencing with the first such
Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below) until the principal hereof is paid or made available
for payment and on the Stated Maturity, and interest shall accrue on any overdue
principal and on any overdue installment of interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate per annum in
effect from time to time with respect to this Note. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date set forth above
next preceding such Interest Payment Date. The first payment of interest on any
Note originally issued between a Regular Record Date and the related Interest
Payment Date will be made on the Interest Payment Date following the next
succeeding Regular Record Date to the Person in whose name this Note is
registered on such next succeeding Regular Record Date. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder (as defined in
such Indenture) on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed (after receipt of notice from the Company of a proposed
payment of defaulted interest) by the Trustee (as hereinafter defined), notice
whereof shall be given to Holders of Notes not less than 10 calendar 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
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Payment of interest may, at the
option of the Company, be made by check mailed to the registered address of the
person entitled thereto. Notwithstanding the foregoing, interest payable at
Maturity shall be payable to the person to whom the principal is payable.
Payments of interest to be paid in U.S. dollars (other than interest,
and if this is an Amortizing Note, principal (if this is not a global Note)
payable at the Stated Maturity) will be made by mailing a check to the Holder at
the address of the Holder appearing in the Security Register as of the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account maintained by such Holder with a bank located in the United
States as designated by the Holder not less than 15 calendar days prior to the
Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in
a Specified Currency other than U.S. dollars (by written request to the Paying
Agent as provided below), the Holder shall provide appropriate payment
instructions to the Trustee, and all such payments will be made in immediately
available funds to a bank account maintained by the Holder in the country of the
Specified Currency (or, with respect to ECUs, Brussels). If such a payment with
respect to this Note cannot be made by wire transfer because the required
designation has not been received by the Trustee on or before the requisite date
or for any other reason, a notice will be mailed to the Holder at its registered
address requesting a designation pursuant to which such wire transfer can be
made and, upon the Trustee's receipt of such a designation, such payment will be
made within 15 days of such receipt.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. In the event that
payment is so made in accordance with the instructions of the Holder, such wire
transfer shall be deemed to constitute full and complete payment of such
interest and principal on this Note. If this is not a global Note, payment of
the principal, premium, if any, and interest payable at Maturity in respect of
this Note will be paid in immediately available funds upon surrender of this
Note accompanied by wire instructions at the principal office of the Trustee,
provided that this Note is presented in time for the Trustee to make such
payments in such funds in accordance with its normal procedures.
If this Note is a Book-Entry Note as specified above, while this Note
is represented by one or more Book-Entry Notes registered in the name of the
U.S. Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the U.S.
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the U.S. Depositary or its nominee,
and otherwise in accordance with such agreements, regulations and procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof: UNLESS
AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY TO A
NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF THE U.S. DEPOSITARY TO THE
U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY OR BY THE U.S.
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S. DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR U.S. DEPOSITARY.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: MANOR CARE, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
of the Series designated herein
issued under the within-mentioned
indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
----------------------------------
Authorized Officer
<PAGE>
[Form of Reverse]
MANOR CARE, INC.
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
SECTION 1. General. This Note is one of a duly authorized issue of
notes of the Company (herein called the "Notes"), constituting part of the
series of Securities (as defined in the Indenture hereinafter referred to)
designated on the face hereof (Securities of such series being herein called the
"Securities of this series"), all issued or to be issued under an indenture
dated as of November 22, 1996 (the "Indenture"), duly executed and delivered by
the Company to The Chase Manhattan Bank, as trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the respective rights
and duties thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities of this series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest at different
rates, may be subject to different redemption provisions, may be subject to
different sinking, purchase or analogous funds and may otherwise vary as in the
Indenture provided.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on
this Note will be equal to either (i) the interest rate calculated by reference
to the specified Interest Rate Basis plus or minus the Spread, if any, or (ii)
the interest rate calculated by reference to the specified Interest Rate Basis
multiplied by the Spread Multiplier, if any. The "Spread" is the number of basis
points (one basis point equals one-hundredth of a percentage point) specified on
the face hereof as being applicable to this Note, and the "Spread Multiplier" is
the percentage specified on the face hereof as being applicable to this Note.
Set forth on the face hereof are the Interest Rate Basis and the Spread or
Spread Multiplier, if any, and the maximum or minimum interest rate limitation,
if any, applicable to this Note. Set forth on the face hereof are particulars as
to the Calculation Agent (unless specified otherwise, The Chase Manhattan Bank
(in such capacity, the "Calculation Agent")), Index Maturity, Original Issue
Date, interest rate in effect for the period from the Original Issue Date to the
first Interest Reset Date set forth on the face hereof (the "Initial Interest
Rate"), Interest Determination Dates, Interest Payment Dates, Regular Record
Dates and Interest Reset Dates with respect to this Note.
Except as provided below, interest on this Note will be payable (i) if
this Note resets daily, weekly or monthly, on the third Wednesday of each month
or on the third Wednesday of March, June, September and December of each year,
as specified on the face hereof; (ii) if this Note resets quarterly, on the
third Wednesday of March, June, September and December of each year; (iii) if
this Note resets semi-annually, on the third Wednesday of each of two months of
each year specified on the face hereof; and (iv) if this Note resets annually,
on the third Wednesday of one month of each year specified on the face hereof
(each such day being an "Interest Payment Date"), and in each case at Maturity.
If any Interest Payment Date, other than Maturity, for this Note would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next day that is a Business Day, except that if this Note is a
LIBOR Note, if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding London Business Day. If
the Maturity for this Note falls on a day that is not a Business Day, payment of
principal, premium, if any, and interest with respect to this Note will be made
on the next succeeding Business Day with the same force and effect as if made on
the due date, and no additional interest shall be payable as a result of such
delayed payment.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (such period being the "Reset
Period" for such Note, and the first day of each Reset Period being an "Interest
Reset Date"), as specified on the face hereof. The Interest Reset Dates will be,
if this Note resets daily, each Business Day; if this Note resets weekly (unless
the Interest Rate Basis on the face hereof is the Treasury Rate), the Wednesday
of each week; if this Note resets weekly and the Interest Rate Basis on the face
hereof is the Treasury Rate, the Tuesday of each week, except as provided in the
next succeeding paragraph; if this Note resets monthly (unless the Interest Rate
Basis on the face hereof is the 11th District Cost of Funds Rate), the third
Wednesday of each month; if this Note resets monthly and the Interest Rate Basis
on the face hereof is the 11th District Cost of Funds Rate, the first calendar
day of the month; if this Note resets quarterly, the third Wednesday of each
March, June, September and December; if this Note resets semi-annually, the
third Wednesday of the two months of each year specified on the face hereof; and
if this Note resets annually, the third Wednesday of one month of each year
specified on the face hereof; provided, however, that the interest rate in
effect from and including the date of issue to but excluding the first Interest
Reset Date with respect to a Floating Rate Note will be the Initial Interest
Rate, as set forth on the face hereof. If the Interest Reset Date would
otherwise be a day that is not a Business Day, the Interest Reset Date shall be
postponed to the next day that is a Business Day, except that if the Interest
Rate Basis on the face hereof is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding London Business Day. The interest rate in effect on each day will be
(a) if such day is an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to such Interest Reset Date, or (b) if
such day is not an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to the next preceding Interest Reset
Date, subject in either case to any maximum or minimum interest rate limitation
referred to on the face hereof and to any adjustment by a Spread or a Spread
Multiplier referred to on the face hereof; provided, however, that the interest
rate in effect for the period from and including the Original Issue Date to but
excluding the first Interest Reset Date shall be the Initial Interest Rate
specified on the face hereof.
The interest rate for each Reset Period will be the rate determined by
the Calculation Agent on the Calculation Date (as defined below) pertaining to
the Interest Determination Date pertaining to the Interest Reset Date for such
Reset Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date for (a) a Commercial
Paper Rate Note (the "Commercial Paper Interest Determination Date"), (b) a
Federal Funds Rate Note (the "Federal Funds Interest Determination Date"), (c) a
CD Rate Note (the "CD Interest Determination Date'), (d) a Prime Rate Note (the
"Prime Interest Determination Date"), (e) a CMT Rate Note (the "CMT Interest
Determination Date"), or (f) a Kenny Rate Note (the "Kenny Rate Interest
Determination Date") will be the second Business Day prior to such Interest
Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note (the "11th District Interest Determination Date") will
be the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below). Unless otherwise specified
on the face hereof, the Interest Determination Date pertaining to an Interest
Reset Date for a LIBOR Note (the "LIBOR Interest Determination Date") will be
the second London Business Day immediately preceding such
<PAGE>
Interest Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date for a Treasury Rate Note
(the "Treasury Interest Determination Date") will be the day of the week in
which such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is usually held on
the following Tuesday, except that such auction may be held on the preceding
Friday. If, as a result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Treasury Interest Determination Date
pertaining to the Reset Period commencing in the next succeeding week. If an
auction date shall fall on any Interest Reset Date for a Treasury Rate Note,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date. Unless otherwise specified on the face
hereof, the "Calculation Date" pertaining to any Interest Determination Date
shall be the earlier of (i) the tenth calendar day after the Interest
Determination Date or, if such day is not a Business Day, the next succeeding
Business Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity, as the case may be.
As used herein, "Business Day" means, unless otherwise specified on
the face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The
City of New York is not a day on which banking institutions are authorized or
required by law, regulation or executive order to close and, if the Interest
Rate Basis of this Note is LIBOR, is also a London Business Day; provided that
with respect to a Specified Currency, such day is also not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close in the principal financial center of the country of such
Specified Currency (or in the case of ECUs, is not a day designated as an ECU
Non- Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made). As used herein, "London Business Day" means any day (a)
if the Designated LIBOR Currency is other than the ECU, on which dealings in
deposits in such Designated LIBOR Currency are transacted in the London
interbank market or (b) if the Designated LIBOR Currency is the ECU, that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association in Paris
or otherwise generally regarded in the ECU interbank market as a day on which
payments on ECUs shall not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Unless otherwise indicated on the face hereof, interest on this Note
will accrue from and including the date of issue or from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly provided for, as the case may be, to but excluding the
Interest Payment Date or the Maturity, as the case may be. Accrued interest is
calculated by multiplying the face amount of this Note by an accrued interest
factor. This accrued interest factor is computed by adding the interest factors
calculated for each day from and including the date of issue, or from and
including the last date to which interest has been paid or duly provided for, to
but excluding the date for which accrued interest is being calculated. The
interest factor for each such day (unless otherwise specified) is computed by
dividing the interest rate applicable to such day by 360, in the case of
Commercial Paper Rate Notes, CD Rate Notes, 11th District Cost of Funds Rate
Notes, Federal Funds Rate Notes, LIBOR Notes and Prime Rate Notes, or by the
actual number of days in the year, in the case of Treasury Rate Notes or CMT
Rate Notes, or by 365 days in the case of Kenny Rate Notes.
The Calculation Agent shall calculate the interest rate on this Note,
as provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to this
Note. The Trustee shall act as the initial Calculation Agent for the Notes. For
purposes of calculating the rate of interest payable on this Note, the Company
will enter into an agreement with the Calculation Agent. The Calculation Agent's
determination of any interest rate shall be final and binding in the absence of
manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on this
Note will in no event be higher than the maximum rate permitted by New York or
other applicable law, as the same may be modified by United States law of
general application.
Determination of Commercial Paper Rate. If the Interest Rate Basis
specified on the face hereof is Commercial Paper Rate, the interest rate
determined with respect the Commercial Paper Rate Interest Determination Date
shall be the Commercial Paper Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof, as
determined on such Commercial Paper Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
designated on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors ("H.15(519)")
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date shall be the Money Market Yield of the rate on such
Commercial Paper Interest Determination Date for commercial paper having the
Index Maturity designated on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If by 3:00 P.M.,
New York City time, on such Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the Commercial Paper Rate for
such Commercial Paper Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date, of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity designated on the face hereof placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
securities rating agency; provided, however,
<PAGE>
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Commercial Paper Rate with respect to
such Commercial Paper Interest Determination Date will be the Commercial Paper
Rate in effect immediately prior to such Commercial Paper Interest Determination
Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred- thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD Interest
Determination Date shall be the CD Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof, as
determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination Date,
the rate on such date for negotiable certificates of deposit having the Index
Maturity designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such CD Interest Determination Date, then the CD Rate with respect to such CD
Interest Determination Date shall be the rate on such CD Interest Determination
Date for negotiable certificates of deposit having the Index Maturity designated
on the face hereof as published in Composite Quotations under the heading
"Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the CD Rate on such CD Interest Determination Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the Index Maturity specified on the face hereof in
a denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the
face hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest Determination Date,
the rate displayed on the Designated CMT Telerate Page (as defined below) under
the caption ". . . Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Interest Determination Date and (ii)
if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the applicable CMT
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate for the CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in The
City of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain three such
Treasury Note quotations, the CMT Rate for such CMT Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will be the CMT Rate in effect immediately prior to such CMT Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the third preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
<PAGE>
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis
specified on the face hereof is Federal Funds Rate, the interest rate determined
with respect to the Federal Funds Interest Determination Date shall be the
Federal Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on such Federal
Funds Interest Determination Date.
"Federal Funds Rate" means, with respect to any Federal Funds Interest
Determination Date, the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Federal Funds Interest Determination Date, then the
Federal Funds Rate with respect to such Federal Funds Interest Determination
Date shall be the rate on such Federal Funds Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If by 3:00 P.M., New York City time, on such Calculation Date such rate
is not published in either H.15(519) or Composite Quotations, then the Federal
Funds Rate with respect to such Federal Funds Interest Determination Date shall
be calculated by the Calculation Agent and shall be the arithmetic mean (each as
rounded, if necessary, to the nearest one hundred-thousandth of a percent) of
the rates as of 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date for the last transaction in overnight Federal Funds arranged
by three leading brokers of Federal Funds transactions in The City of New York
selected by the Calculation Agent; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate with respect to such Federal Funds
Interest Determination Date will be the Federal Funds Rate in effect immediately
prior to such Federal Funds Interest Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to the 11th District Interest Determination Date
shall be the 11th District Cost of Funds Rate plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such 11th District Interest Determination Date.
"11th District Cost of Funds Rate" means, with respect to any 11th
District Interest Determination Date, the rate equal to the monthly weighted
average cost of funds for the calendar month immediately preceding such 11th
District Interest Determination Date as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
11th District Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on any related 11th District Interest Determination Date, the
11th District Cost of Funds Rate for such 11th District Interest Determination
Date shall be the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District that was most
recently announced (the "Index") by the FHLB of San Francisco as such cost of
funds for the calendar month immediately preceding the date of such
announcement. If the FHLB of San Francisco fails to announce such rate for the
calendar month immediately preceding such 11th District Interest Determination
Date, then the 11th District Cost of Funds Rate for such 11th District Interest
Determination Date will be the 11th District Cost of Funds Rate in effect
immediately prior to such 11th District Interest Determination Date.
Determination of Kenny Rate. If the Interest Rate Basis specified on the face
hereof is Kenny Rate, the interest rate determined with respect to the Kenny
Rate Interest Determination Date shall be the Kenny Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, specified on the
face hereof, as determined on such Kenny Rate Interest Determination Date.
"Kenny Rate" means, with respect to any Kenny Rate Interest
Determination Date, the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and shall be, based upon 30 day yield evaluations at
par of bonds, the interest on which is exempt from Federal income taxation under
the Internal Revenue Code of 1986, as amended (the "Code"), of not less than
five high grade component issuers selected by Kenny which shall include, without
limitation, issuers of general obligation bonds. The specific issuers included
among the component issuers may be changed from time to time by Kenny in its
discretion. The bonds on which the Weekly Index is based shall not include any
bonds on which the interest is subject to a minimum tax or similar tax under the
Code unless all tax-exempt bonds are subject to such tax. In the event Kenny
ceases to make available such Weekly Index, a successor indexing agent will be
selected by the Calculation Agent, such index to reflect the prevailing rate for
bonds rated in the highest short-term rating category by Moody's Investors
Service, Inc. and Standard & Poor's Corporation in respect of issuers most
closely resembling the high grade component issuers selected by Kenny for its
Weekly Index, the interest on which is (A) variable on a weekly basis, (B)
exempt from Federal income taxation under the Code, and (C) not subject to a
minimum tax or similar tax under the Code, unless all tax-exempt bonds are
subject to such tax. If such successor indexing agent is not available, the rate
for any Kenny Rate Interest Determination Date shall be 67% of the rate
determined if the Treasury Rate option had been originally selected.
Determination of LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to the LIBOR Interest
Determination Date shall be LIBOR plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the Designated
LIBOR Currency (as defined below) having the Index Maturity designated on
the face hereof, commencing on the second London Business Day immediately
following the LIBOR Interest Determination Date, which appear on the
Designated LIBOR
<PAGE>
Page specified on the face hereof as of 11:00 A.M., London time, on that
LIBOR Interest Determination Date, if at least two such offered rates
appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the face
hereof, the rate for deposits in the Designated LIBOR Currency (as defined
below) having the Index Maturity designated on the face hereof, commencing
on the second London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page specified on
the face hereof as of 11:00 A.M. London time on that LIBOR Interest
Determination Date. Notwithstanding the foregoing, if fewer than two
offered rates appear on the Designated LIBOR Page with respect to LIBOR
Reuters (unless the specified Designated LIBOR Page with respect to LIBOR
Reuters by its terms provides only for a single rate, in which case such
single rate shall be used), or if no rate appears on the Designated LIBOR
Page with respect to LIBOR Telerate, whichever may be applicable, LIBOR in
respect of the related LIBOR Interest Determination Date will be determined
as if the parties had specified the rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with
respect to LIBOR Reuters (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate shall be
used), or if no rate appears on the Designated LIBOR Page with respect to
LIBOR Telerate, as the case may be, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in the Designated LIBOR
Currency (as defined below) for the period of the Index Maturity specified
on the face hereof, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, to prime
banks in the London interbank market as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency
in such market at such time. If at least two such quotations are provided,
LIBOR determined on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of the rates quoted as of 11:00 A.M. in the
applicable Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent for loans in the
Designated LIBOR Currency to leading banks commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
having the Index Maturity designated on the face hereof in a principal
amount that is representative for a single transaction in such Designated
LIBOR Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined on such LIBOR Interest Determination Date
will be LIBOR in effect immediately prior to such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated on the face hereof, the Designated
LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is designated on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is
designated on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR for the applicable Designated LIBOR Currency
will be determined as if LIBOR Telerate (and, if the U.S. dollar is the
Designated LIBOR Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the
face hereof, the capital city of the country that issues as its legal tender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center shall be The City of New York and
Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to the Prime
Interest Determination Date shall be the Prime Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on such Prime Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan." In the event that such rate is not published prior to 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Prime Interest
Determination Date, then the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page
as such bank's prime rate or base lending rate as in effect for that Prime
Interest Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for the Prime Interest Determination Date, the Prime Rate
with respect to such Prime Interest Determination Date shall be the arithmetic
mean of the prime rates quoted on the basis of the actual number of days in the
year divided by 360 as of the close of business on such Prime Interest
Determination Date by at least two of the three major money center banks in The
City of New York selected by the Calculation Agent. If fewer than two quotations
are provided, the Prime Rate with respect to such Prime Interest Determination
Date shall be determined on the basis of the rates furnished in The City of New
York by the appropriate number of substitute banks or trust companies organized
and doing business under the laws of the United States, or any state thereof,
having total equity capital of at least U.S. $500 million and being subject to
supervision or examination by Federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
appropriate number of substitute banks or trust companies selected as aforesaid
are not quoting as mentioned in this sentence, the Prime Rate with respect to
such Prime Interest Determination Date will be the Prime Rate in effect
immediately prior to such Prime Interest Determination Date. "Reuters Screen
USPRIME1 Page" means the display designated as page "USPRIME1" on the Reuters
Monitor Money Rate Service (or such other page as may replace the USPRIME1 page
on the service for the purpose of displaying the prime rate or base lending rate
of major banks).
Determination of Treasury Rate. If the Interest Rate Basis specified on the face
hereof is Treasury Rate, the interest rate determined with respect to the
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on such Treasury Interest Determination Date.
<PAGE>
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading, "Treasury bills --
auction average (investment)" or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the average auction rate (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury.
In the event that such rate is not available by 3:00 P.M., New York City time,
on the Calculation Date pertaining to such Treasury Interest Determination Date,
or if no such auction is held in a particular week, then the Treasury Rate with
respect to such Treasury Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Interest Determination Date, of three leading primary U.S. government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity designated on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Interest Determination Date will be the Treasury Rate
in effect immediately prior to such Treasury Interest Determination Date.
The Calculation Agent shall calculate the interest rate on this Note
in accordance with the foregoing as soon as practicable after the Interest
Determination Date.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on this Note if an Event of Default
has occurred with respect hereto or upon the giving of a notice of redemption).
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multicontributor pages of the Quoting Source for three (or two
if three are not available) major banks in The City of New York. The first three
(or two) such banks selected by the Currency Determination Agent which are
offering quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business Day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate for such date is not
then available, such payment will be made in the Specified Currency. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All currency
exchange costs associated with any payment in U.S. dollars on this Note will be
borne by the Holder by deductions from such payment. Any currency determination
agent (the "Currency Determination Agent") with respect to this Note is
specified on the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the Holder of this
Note.
All percentages resulting from any calculations under this Note will
be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest
one-hundredth of a unit (with five one-thousandths being rounded upward) or
nearest cent (with one-half cent being rounded upward), as the case may be.
SECTION 3. Supplemental Indentures. The Indenture contains provisions
permitting the Company and the Trustee, with the consent of the Holders of not
less than a majority in principal amount of the Securities at the time
outstanding of all series to be affected (acting
<PAGE>
as one class) to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
modifying in any manner the rights of the Holders of the Securities or such
series; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each outstanding Security affected thereby, among
other things, (i) change the Stated Maturity (as defined in the Indenture) of
the principal of, or any installment of principal of or interest on, any
Security; (ii) reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof; (iii) 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 (as defined in the Indenture)); (iv) 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 the Indenture or certain defaults thereunder and their consequences) provided
for in the Indenture; (v) change any obligation of the Company, with respect to
outstanding Securities of a series, to maintain an office or agency in the
places and for the purposes specified in the Indenture for such series; or (vi)
modify any of the foregoing provisions or the provisions for the waiver of
certain covenants and defaults, except to increase any applicable percentage of
the aggregate principal amount of outstanding Securities the consent of the
Holders of which is required or to provide with respect to any particular series
the right to condition the effectiveness of any supplemental indenture as to
that series on the consent of the Holders of a specified percentage of the
aggregate principal amount of outstanding Securities of such series or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby. It is also provided in the Indenture that the Holders of a majority in
aggregate principal amount of the Securities of a series may on behalf of the
Holders of all the Securities of such series waive any past or existing default
or Event of Default under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal of, premium, if
any, or interest, if any, on any Security of such series or in respect of a
covenant or provision which cannot be modified without the consent of the Holder
of each outstanding Security of the series affected. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes. In addition, the
Indenture contains provisions permitting the Company, when authorized by or
pursuant to a resolution of the Company's Board of Directors, and the Trustee,
at any time and from time to time, without the consent of any Holders, to
execute supplemental indentures for any one of the following purposes: (i) to
evidence the succession of another corporation to the Company and the assumption
by any such successor of the covenants of the Company herein and in the
Securities; (ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities or to surrender any right or power
herein conferred upon the Company; (iii) to add any additional Events of Default
with respect to all or any series of the Securities; (iv) to add or change any
of the provisions of the Indenture as is necessary to facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal; (v)
to change or eliminate any of the provisions of the Indenture; provided that any
such change or elimination shall become effective only when there is no Security
outstanding of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or elimination of such
provision; (vi) to establish the form or terms of Securities of any series as
permitted by the Indenture; (vii) to evidence and provide for the acceptance of
appointment pursuant to the Indenture of a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts pursuant to the Indenture by more than one Trustee;
(viii) if allowed under applicable laws and regulations, to permit payment in
the United States of principal, premium or interest on Bearer Securities or
Coupons, if any; (ix) to provide for the issuance of uncertificated Securities
of one or more series in addition to or in place of certificated Securities; (x)
to cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein; or (xi) to make
any other provisions with respect to matters or questions arising under this
Indenture; provided such other provisions as may be made shall not adversely
affect the interests of the Holders of outstanding Securities of any series in
any material respect.
SECTION 4. Obligation of the Company Absolute. No reference herein to
the Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the place,
at the respective times, at the rate and in the coin or currency herein
prescribed.
SECTION 5. Discharge of Obligations. The Indenture permits the Company
to discharge its obligations with respect to the Notes on the 91st day following
the satisfaction of the conditions set forth in the Indenture, which include the
deposit with the Trustee of money or U.S. Government Obligations or a
combination thereof or, in the case of Securities, if any, denominated in a
Foreign Currency, Foreign Government Securities (as defined in the Indenture),
sufficient to pay and discharge each installment of principal of (including
premium, if any, on) and interest, if any, on the outstanding Notes.
SECTION 6. Consolidation or Merger of the Company. If the Company
shall, in accordance with Section 901 of the Indenture, consolidate with or
merge into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, the successor shall succeed to, and
be substituted for, the Person named as the "Company" on the face of this Note,
all on the terms set forth in the Indenture.
SECTION 7. Authorized Denominations. The Notes are issuable in
registered form without coupons in denominations of $1,000 or any integral
multiple thereof. In the manner and subject to the limitations provided in the
Indenture, but without the payment of any service charge, Notes may be exchanged
for an equal aggregate principal amount of Notes of other authorized
denominations at the office or agency of the Company maintained for such purpose
in the Borough of Manhattan, The City and State of New York.
SECTION 8. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at the office or agency of the Company for
such registration, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
subject to the limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection therewith.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided above, owners of beneficial
interests in this permanent global Note will not be entitled to receive physical
delivery of Notes in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture.
<PAGE>
SECTION 9. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee and any agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the owner of this
Note (whether or not this Note shall be overdue) for the purpose of receiving
payment of the principal of, premium, if any, and interest on this Note, as
herein provided, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered Holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
SECTION 10. Waiver and Release of Liability. No recourse for the
payment of the principal of, premium, if any, or interest on this Note, or for
any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Note or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or role of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
SECTION 11. Redemption. If so specified on the face hereof, this Note
may be redeemed at the option of the Company as a whole or from time to time in
part, on or after the date designated as the Initial Redemption Date on the face
hereof, at the redemption price specified on the face hereof, together with
unpaid interest accrued on the principal amount hereof to be redeemed to the
date of redemption, but interest installments that are due on or prior to the
date of redemption will be payable to the Holder of this Note of record at the
close of business on the relevant Regular Record Date referred to on the face
hereof, all as provided in the Indenture. The Company may exercise such option
by causing the Trustee to mail a notice of such redemption at least 30 but not
more than 60 calendar days prior to the date of redemption, subject to all the
provisions and conditions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
SECTION 12. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable at
the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, the
principal amount of this Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the repayment option by the Holder of this Note shall
be irrevocable, except that a Holder who has tendered this Note for repayment
may revoke any such tender for repayment by written notice to the Trustee
received prior to the close of business on the tenth calendar day prior to the
repayment date. The repayment option may be exercised by the Holder of this Note
for less than the entire principal amount of this Note provided that the
principal amount of this Note remaining outstanding after such repayment is an
authorized denomination. Upon such partial repayment, this Note shall be
cancelled and a new Note or Notes for the remaining principal amount hereof
shall be issued in the name of the Holder of this Note.
SECTION 13. Optional Interest Reset. If so specified on the face
hereof, the Spread or the Spread multiplier on this Note may be reset by the
Company on the date or dates specified on the face hereof (each an "Optional
Interest Reset Date"). The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 calendar days prior to
an Optional Interest Reset Date. If the Company so notifies the Trustee of such
exercise, the Trustee will send, not later than 40 calendar days prior to each
Optional Interest Reset Date, by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) to the Holder of this Note a
notice (the "Reset Notice") indicating (i) that the Company has elected to reset
the Spread or the Spread Multiplier, (ii) such new Spread or Spread Multiplier
and (iii) the provisions, if any, for redemption during the period from such
Optional Interest Reset Date to the next Optional Interest Reset Date or, if
there is no such next Optional Interest Reset Date, to the Stated Maturity of
this Note (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Company may, at its option, revoke the
Spread and/or the Spread Multiplier provided for in the Reset Notice and
establish a Spread and/or Spread Multiplier resulting in a higher interest rate
for the Subsequent Interest Period commencing on such Optional Interest Reset
Date by causing the Trustee to send by telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid) notice of such Spread
and/or Spread Multiplier resulting in a higher interest rate to the Holder of
this Note. Such notice shall be irrevocable. All Notes with respect to which the
Spread and/or the Spread Multiplier is reset on an Optional Interest Reset Date
will bear such Spread and/or Spread Multiplier resulting in a higher interest
rate, whether or not tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the Spread and/or Spread Multiplier of this Note, the Holder of this Note
will have the option to elect repayment of this Note by the Company on such
Optional Interest Reset Date at a price equal to the principal amount hereof
plus interest accrued and unpaid thereon to such Optional Interest Reset Date.
In order to obtain repayment on an Optional Interest Reset Date, the Holder must
follow the procedures set forth under Section 12 for optional repayment except
that the period for delivery or notification to the Trustee shall be at least 25
but not more than 35 calendar days prior to such Optional Interest Reset Date.
If the Holder has tendered this Note for repayment following receipt of a Reset
Notice, the Holder may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth calendar
day prior to such Optional Interest Reset Date.
<PAGE>
SECTION 14. Optional Extension of Maturity. If so specified on the
face hereof, the Stated Maturity of this Note may be extended at the option of
the Company for the period or periods of from one to five whole years specified
on the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to this Note by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to the Stated
Maturity of this Note in effect prior to the exercise of such option (the
"Original Stated Maturity Date"). If the Company so notifies the Trustee of such
exercise, the Trustee will send, not later than 40 calendar days prior to the
Original Stated Maturity Date, by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) to the Holder of this Note, a
notice (the "Extension Notice") indicating (i) that the Company has elected to
extend the Stated Maturity of this Note, (ii) the new Stated Maturity, (iii) the
Spread and/or Spread Multiplier applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period, including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during such Extension Period. Upon the
Trustee's sending of the Extension Notice, the Stated Maturity of this Note
shall be extended automatically and, except as modified by the Extension Notice
and as described in the next two paragraphs, this Note will have the same terms
as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Company may, at its
option, revoke the Spread and/or Spread Multiplier provided for in the Extension
Notice and establish a Spread and/or Spread Multiplier resulting in a higher
interest rate for the Extension Period by causing the Trustee to send by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) notice of such Spread and/or Spread Multiplier resulting in a
higher interest rate to the Holder of this Note. Such notice shall be
irrevocable. All Notes with respect to which the Stated Maturity is extended
will bear such Spread and/or Spread Multiplier resulting in a higher interest
rate for the Extension Period, whether or not tendered for repayment as provided
in the next paragraph.
If the Company elects to extend the Stated Maturity of this Note, the
Holder will have the option to elect repayment of this Note by the Company on
the Original Stated Maturity Date at a price equal to the principal amount
hereof, plus interest accrued and unpaid thereon to such date. In order to
obtain repayment on the Original Stated Maturity Date, the Holder must follow
the procedures set forth under Section 12 for optional repayment, except that
the period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 calendar days prior to the Original Stated Maturity Date. A
Holder who has tendered this Note for repayment following receipt of an
Extension Notice may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth calendar
day prior to the Original Stated Maturity Date.
SECTION 15. Sinking Fund. Unless specified on the face hereof, the
Note will not be subject to a sinking fund.
SECTION 16. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event the principal amount hereof is declared to be due
and payable immediately by reason of an Event of Default or in the event of
redemption or repayment prior to the Stated Maturity hereof in lieu of the
principal amount due at the Stated Maturity hereof shall be the Amortized Face
Amount of this Note as of the date of declaration, redemption or repayment, as
the case may be. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the principal amount of this Note multiplied by the Issue Price (as
set forth on the face hereof) plus (b) that portion of the difference between
the dollar amount determined pursuant to the preceding clause (a) and the
principal amount hereof that has accreted at the Yield to Maturity (as set forth
on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) to such date of declaration,
redemption or payment, but in no event shall the Amortized Face Amount of this
Note exceed its principal amount.
SECTION 17. Events of Default. In case an Event of Default (as defined
in the Indenture) with respect to the Securities of this series shall have
occurred and be continuing, the principal hereof together with accrued interest
thereon, if any, may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
SECTION 18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 19. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 12 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 13 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 14 hereof. Specify the
denomination or denominations (which shall be $1,000 or an integral multiple
thereof in excess thereof, or, if the Note is denominated in a currency other
than U.S. dollars, an Authorized Denomination) of the Note or Notes to be issued
to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
- --------------------------------
Dated:
-------------------------- -------------------------------------
Signature
Sign exactly as name appears on the front
of this Note.
Principal amount to be repaid if Indicate address where check is to be
amount to be repaid is less than sent, if repaid:
the entire principal amount of this
Note (principal amount remaining must
be an authorized denomination) _______________________________________
$__________________________________ _______________________________________
(which shall be an integral multiple
of $1,000, or, if the Note is
denominated in a currency other than
U.S. dollars,an amount equal to the
integral multiples referred to on the SOCIAL SECURITY OR OTHER
face hereof under "Authorized TAXPAYER ID NUMBER
Denominations" (or, if no such
reference is made, an amount equal to ____________________________________
the minimum Authorized Denomination)).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT Custodian
----------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- -----------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- -----------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________ attorney to transfer said Note on the books of the Company,
with full power of substitution in the premises.
Dated:______________________ ________________________________________
Signature
Sign exactly as name appears on the front
of this Note [SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust company or by
a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
