<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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FLUOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-0740960
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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3353 MICHELSON DRIVE
IRVINE, CALIFORNIA 92698
(714) 975-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
LAWRENCE N. FISHER, ESQ.
SENIOR VICE PRESIDENT -- LAW AND SECRETARY
FLUOR CORPORATION
3353 MICHELSON DRIVE
IRVINE, CALIFORNIA 92698
(714) 975-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
E. MICHAEL GREANEY, ESQ.
GIBSON, DUNN & CRUTCHER LLP
4 PARK PLAZA
IRVINE, CALIFORNIA 92614
(714) 451-3800
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time following the effective date of this Registration Statement as
determined in light of market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
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Debt Securities............................... $400,000,000(2) 100% $400,000,000 $121,212.12
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</TABLE>
(1) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(2) Or, in the case of debt securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate offering price
of the amount set forth above.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 20, 1996
PROSPECTUS
FLUOR CORPORATION
SENIOR DEBT SECURITIES
------------------------
Fluor Corporation (the "Company" or "Fluor") may offer from time to time
its senior unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities"), at an aggregate initial
offering price of not more than $400,000,000 or, if applicable, the equivalent
thereof in any other currency or currencies. The Debt Securities may be offered
as a single series or as two or more separate series in amounts, at prices and
on terms to be determined in light of market conditions at the time of sale and
to be set forth in an accompanying Prospectus Supplement.
This Prospectus sets forth information regarding the Company and general
information regarding the Debt Securities. The terms of each series of Debt
Securities, including, where applicable, the specific designation, aggregate
principal amount, authorized denominations, maturity, rate or rates and time or
times of payment of any interest, any terms for optional or mandatory
redemption, conversion or payment of additional amounts or any sinking fund
provisions, any initial public offering price, the proceeds to the Company, any
listing of the Debt Securities on a securities exchange and any other specific
terms in connection with the offering and sale of such series will be set forth
in a Prospectus Supplement or Prospectus Supplements. As used herein, the term
"Debt Securities" shall include securities denominated in United States dollars
or, at the option of the Company if so specified in an applicable Prospectus
Supplement, in any other currency or in composite currencies or in amounts
determined by reference to an index.
The Debt Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution." If any agents of the Company or any underwriters are involved
in the sale of any Debt Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a Prospectus
Supplement. The Company reserves the sole right to accept and, together with its
respective agents from time to time, to reject in whole or in part any proposed
purchase of the Debt Securities to be made directly or through agents.
Information concerning the particular federal income tax consequences to
holders of Debt Securities will be discussed in a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
Prior to issuance there will have been no market for the Debt Securities,
and there can be no assurance that a secondary market for any such Debt
Securities will develop. This Prospectus may not be used to consummate sales of
any Debt Securities unless accompanied by a Prospectus Supplement.
------------------------
The date of this Prospectus is , 1996
<PAGE> 3
AVAILABLE INFORMATION
Fluor is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the Commission's regional offices at Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7
World Trade Center, New York, New York 10048. Copies of such material can be
obtained at prescribed rates upon request from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material
may also be accessed electronically through the Commission's Web site at
http://www.sec.gov. Fluor's securities are listed on the New York Stock
Exchange, Chicago Stock Exchange and Pacific Stock Exchange, and reports, proxy
statements, information statements and other information concerning Fluor can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, the Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois 60605 and the Pacific Stock Exchange, 301 Pine Street, San
Francisco, California 94104.
The Company has filed with the Commission a Registration Statement on Form
S-3 (including all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto, certain portions of which are omitted as permitted by the
rules and regulations of the Commission. Such additional information may be
obtained from the Commission's principal office in Washington, D.C. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document. A copy of
the Registration Statement and the exhibits and schedules thereto may be
examined without charge at the Commission's principal offices at 450 Fifth
Street N.W., Room 1024, Washington, D.C. 20549, and copies of such materials can
be obtained from the Public Reference Section of the Commission at prescribed
rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company under the Exchange
Act with the Commission are hereby incorporated herein by reference: (i) Annual
Report on Form 10-K for the fiscal year ended October 31, 1995 and (ii)
Quarterly Reports on Form 10-Q for the fiscal quarters ended January 31, 1996,
April 30, 1996 and July 31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein, in a
Prospectus Supplement or in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, in a Prospectus
Supplement or in any other subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference other than exhibits to
such documents, unless such exhibits are also specifically incorporated by
reference herein. Requests for such copies should be directed to Fluor
Corporation, 3353 Michelson Drive, Irvine, California 92698. Attention:
Corporate Secretary, telephone number (714) 975-2000.
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Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars," or "U.S.$").
THE COMPANY
Fluor Corporation, through Fluor Daniel, Inc. and other domestic and
foreign subsidiaries, provides engineering, procurement, construction,
maintenance and other diversified services on a worldwide basis to an extensive
range of industrial, commercial, utility, natural resources, energy and
governmental clients. The types of services provided by Fluor, either directly
or through partnerships or affiliations, include: feasibility studies,
conceptual design, detail engineering, procurement, project and construction
management, construction, maintenance, plant operations, technical project
finance, quality assurance/quality control, start-up assistance, site
evaluation, licensing, consulting, construction equipment sales and leasing,
temporary technical and non-technical staffing and environmental services. The
Company's engineering and construction business derives its competitive strength
from its diversity, reputation for quality, expertise, geographic coverage, and
ability to execute projects of varying sizes.
The Company also maintains investments in coal-related businesses through
its ownership of A.T. Massey Coal Company, Inc. A.T. Massey and its subsidiaries
produce, process, and sell bituminous, low sulfur coal of steam and
metallurgical grades from sixteen mining complexes located in West Virginia,
Kentucky and Tennessee.
The Company is a Delaware corporation incorporated in 1978. Its principal
executive offices are located at 3353 Michelson Drive, Irvine, California 92698,
telephone number (714) 975-2000.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes, which may include the reduction of outstanding
indebtedness, possible acquisitions, working capital increases and capital
expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods indicated. For purposes of calculating
the ratio, earnings consist of earnings from continuing operations before income
taxes plus fixed charges. Fixed charges consist of interest costs plus that
portion of rental expense that represents interest:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
JULY 31,
1996 YEAR ENDED OCTOBER 31,
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1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C>
10.31 11.17 9.06 6.61 5.29 5.85
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
represent pretax income from continuing operations plus fixed charges. Fixed
charges represent interest on indebtedness and that portion of rental expense
the Company believes to be representative of interest.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") and the
extent to which such general provision may apply to the Offered Debt Securities
will be described in a Prospectus Supplement relating to such Offered Debt
Securities.
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<PAGE> 5
The Debt Securities are to be issued under an indenture (the "Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Trustee"). The
terms of the Debt Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and holders of the Debt Securities are
referred to the Indenture and the Trust Indenture Act for a statement thereof. A
copy of the form of Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The following summaries of certain
provisions of the Debt Securities and the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Debt Securities and the Indenture, including the
definitions therein of certain terms which are not otherwise defined in this
Prospectus. Wherever particular provisions or defined terms of the Indenture are
referred to, such provisions or defined terms are incorporated herein by
reference. References herein are to sections in the Indenture. As used in this
"Description of the Debt Securities," the "Company" refers to Fluor Corporation
and does not include its subsidiaries.
The Debt Securities may be issued from time to time in one or more series.
The terms of each series of Debt Securities will be established by or pursuant
to a resolution of the Board of Directors and set forth or determined in the
manner provided in an Officer's Certificate or by a supplemental indenture. The
particular terms of the Debt Securities offered pursuant to any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Supplements.
GENERAL
The Indenture will not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and Debt Securities may be issued
thereunder from time to time as a single series or in two or more separate
series up to the aggregate principal amount from time to time authorized by the
Company for each series. The Debt Securities will be unsecured obligations of
the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
Debt Securities may be issuable in the form of one or more Global
Securities, as described below under "Global Securities." The Debt Securities
(other than those issued in the form of a Global Security) are exchangeable or
transferable without charge therefor, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith and require the holders to furnish appropriate endorsements
and transfer documents. (Section 3.05)
Unless otherwise indicated in the applicable Prospectus Supplement or
Prospectus Supplements, principal of and any premium and interest on the Debt
Securities will be payable, and the transfer of the Debt Securities will be
registrable, at the principal corporate trust office of the Trustee. In
addition, unless otherwise provided in the applicable Prospectus Supplement or
Prospectus Supplements and except in the case of Global Securities, payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as it appears on the Security Register. (Sections
3.01, 3.05, 10.01 and 10.02)
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the Offered Debt
Securities: (1) the title of the Offered Debt Securities; (2) any limit upon the
aggregate principal amount of the Offered Debt Securities; (3) the Person to
whom any interest on the Offered Debt Securities will be payable, if other than
the Person in whose name it is registered on the regular record date for such
interest; (4) the date or dates on which the principal or installments of
principal of the Offered Debt Securities is payable or the method of
determination thereof and any rights of extension; (5) the rate or rates at
which the Offered Debt Securities shall bear interest, if any, and the date or
dates from which such interest will accrue, the dates on which any such interest
shall be payable and the regular record dates therefor; (6) the place or places
where the principal of and any interest on the Offered Debt Securities shall be
payable; (7) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Offered Debt Securities may be
redeemed, if applicable, at the option of the Company; (8) the obligation, if
any, of the Company to redeem or purchase the Offered Debt Securities 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 the Offered Debt Securities shall be redeemed or
purchased, in whole or in part, and any provisions for the remarketing of such
Debt Securities;
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<PAGE> 6
(9) the denominations in which any Offered Debt Securities shall be issuable, if
other than denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000; (10) if determined with reference to an index or
pursuant to a formula, the amount of payments of principal of or any premium or
interest on the Offered Debt Securities, and the manner in which such amounts
shall be determined and the calculation agent, if any, with respect thereto;
(11) the currency, currencies or currency units for the payment of principal of
and any premium and interest payable on the Offered Debt Securities, if other
than United States dollars; (12) if the principal of or any premium or interest
on the Offered Debt Securities is denominated or payable, at the election of the
Company or the Holder, in a currency or currencies other than that in which the
Offered Debt Securities are stated to be payable, the currency, currencies or
currency units for which such election is made and the periods within which, and
the terms and conditions upon which such election is made and the amount payable
(or the manner in which such amount is determined); (13) if other than the
entire principal amount thereof, the portion of the principal payable upon
acceleration of such Offered Debt Securities following an Event of Default; (14)
if the principal amount payable at the Stated Maturity of the Offered Debt
Securities will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be the principal amount of
such Offered Debt Securities as of any such date for any purpose thereunder,
including the principal amount thereof which is due and payable upon any
Maturity other than the Stated Maturity or which is deemed outstanding as of any
date prior to the Stated Maturity, or, in any such case, the manner in which
such amount is determined; (15) if applicable, that the Offered Debt Securities
are not defeasible as described under "Defeasance and Covenant Defeasance"
below; (16) whether the Offered Debt Securities are to be issued in whole or in
part in the form of one or more Global Securities and, if so, the identity of
the Depositary for such Global Securities and the circumstances under which any
such Global Security may be exchanged for Debt Securities registered in the name
of, and any transfer of such Global Security may be registered to, a Person
other than such Depositary or its nominee; (17) any addition to or change in the
Events of Default which applies to the Offered Debt Securities and any change in
the right of the Trustee or the Holders of such Offered Debt Securities to
accelerate the maturity of the principal amount thereof; (18) any change in the
meaning of "Business Day" with respect to any Offered Debt Securities; (19)
whether the Offered Debt Securities may be issued or delivered, or whether any
installment of principal of or any interest is payable, only upon receipt of
certain certificates or other documents or satisfaction of other conditions in
addition to those specified in the Indenture, and the form and terms of such
certificates, documents or conditions; (20) if applicable, the terms of any
right to convert the Offered Debt Securities into shares of Common Stock of the
Company or other securities or property; (21) any addition to or change in the
covenants in the Indenture described under "Certain Covenants of the Company
Under the Indenture" below; (22) any other terms of the Offered Debt Securities
not inconsistent with the provisions of the Indenture. (Section 3.01)
Debt Securities may be issued as Original Issue Discount Securities, which
may be sold at a discount below their principal amount. Even if such Debt
Securities are not issued at a discount below their principal amount, such Debt
Securities may, for United States Federal income tax purposes, be deemed to have
been issued with "original issue discount" ("OID") because of certain interest
payment characteristics. United States Federal income tax and other
considerations applicable to Debt Securities issued with original issue
discount, including Original Issue Discount Securities, will be described in the
Prospectus Supplement or Prospectus Supplements relating thereto. In addition,
United Stated Federal tax considerations or other restrictions or terms
applicable to any Offered Debt Securities which are denominated in a currency
other than United States dollars will be set forth in a Prospectus Supplement or
Prospectus Supplements relating thereto.
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into
Common Stock or other securities or property will be set forth in the Prospectus
Supplement or Prospectus Supplements relating thereto. Such terms shall include
provisions as to whether conversion is mandatory or at the option of the Holder
and may include provisions pursuant to which the number of shares of Common
Stock or other securities or property to be received by the Holders of Debt
Securities would be calculated according to the market price of Common Stock or
other securities or property as of a time stated in the applicable Prospectus
Supplement or Prospectus Supplements.
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<PAGE> 7
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the applicable Prospectus Supplement or
Prospectus Supplements. A Global Security will be issued in a denomination equal
to the aggregate principal amount of Outstanding Debt Securities of the series
represented by such Global Security. The specific terms of the depositary
arrangement with respect to a series of Debt Securities will be described in the
applicable Prospectus Supplement or Prospectus Supplements.
CERTAIN COVENANTS OF THE COMPANY UNDER THE INDENTURE
Restrictions on Liens. The Indenture provides that the Company will not,
and will not permit any Restricted Subsidiary (defined below) to, incur, issue,
assume or guarantee debt secured by any Lien (defined below) upon any Principal
Property (defined below) without making, or causing such Restricted Subsidiary
to make, effective provision whereby all of the Debt Securities issued under the
Indenture and then Outstanding shall be secured by such Lien, equally and
ratably with any and all other debt thereby secured, so long as such debt is so
secured. The foregoing restrictions do not apply, however, to Liens existing on
the date of the Indenture or to (1) Liens existing on Principal Property owned
or leased by a corporation at the time it becomes a Restricted Subsidiary; (2)
Liens existing on Principal Property at the time of its acquisition by the
Company or a Restricted Subsidiary; (3) Liens to secure any debt incurred prior
to, at the time of, or within 12 months after the acquisition of any Principal
Property for the purpose of financing all or any part of the purchase price
thereof and any Lien to the extent that it secures debt which is in excess of
such purchase price and for the payment of which recourse may be had only
against such Principal Property; (4) Liens to secure any debt incurred prior to,
at the time of, or within 12 months after the completion of the construction and
commencement of commercial operation, alteration, repair or improvement of
Principal Property for the purpose of financing all or any part of the cost
thereof and any Lien to the extent that it secures debt which is in excess of
such cost and for the payment of which recourse may be had only against such
Principal Property; (5) Liens in favor of the Company or any Affiliate; (6)
Liens in favor of the United States of America or any State thereof or any other
country, or any agency, instrumentality or political subdivision of any of the
foregoing, to secure partial, progress, advance or other payments or performance
pursuant to the provisions of any contract or statute, or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property subject to
such Liens; (7) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or other similar
Liens arising in the ordinary course of business, or governmental (federal,
state or municipal) Liens arising out of contracts for the sale of products or
services by the Company or any Restricted Subsidiary, or deposits or pledges to
obtain the release of any of the foregoing; (8) certain pledges or deposits
under workmen's compensation or similar legislation or in certain other
circumstances; (9) certain Liens in connection with legal proceedings, including
certain Liens arising out of judgments or awards; (10) Liens for certain taxes
or assessments; (11) certain Liens consisting of restrictions on the use of real
property which do not interfere materially with the property's value; (12) Liens
securing obligations issued by certain government agencies or instrumentalities
to finance the acquisition or construction of property, and on which the
interest is not includible in gross income of the Holder; (13) Liens on or with
respect to coal, gas, hydrocarbon or mineral properties not fully developed
securing debt, the proceeds of which are used to finance or refinance the
development of such properties; (14) Liens on or with respect to mineral rights
held under option but not owned by the Company or any Restricted Subsidiary;
(15) Liens on or with respect to ores, concentrates, metals or other raw
materials or products incurred in the ordinary course of business in connection
with the importation, purchase or sale thereof; (16) any extension, renewal or
replacement, in whole or in part, of any Lien referred to in the foregoing
clauses (1) through (15) above, so long as the principal amount of the debt
secured thereby does not exceed the principal amount of debt so secured at the
time of the extension, renewal or replacement (except that, where an additional
principal amount of debt is incurred to provide funds for the completion of a
specific project, the additional principal amount, and any related financing
costs, may be secured by the Lien as well) and the Lien is limited to the same
property subject to the Lien so extended, renewed or replaced (plus improvements
on the property). (Section 10.07)
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<PAGE> 8
Notwithstanding the foregoing, the Company and any one or more Restricted
Subsidiaries may issue, assume or guarantee debt secured by a Lien which would
otherwise be subject to the foregoing restrictions if at the time it does so
(the "Incurrence Time") the aggregate amount of such debt plus all other debt of
the Company and its Restricted Subsidiaries secured by a Lien which would
otherwise be subject to the foregoing restrictions (not including debt permitted
to be secured under the foregoing restrictions), plus the aggregate Attributable
Debt (determined as of the Incurrence Time) of Sale and Leaseback Transactions
(other than Sale and Leaseback Transactions permitted by the Indenture) entered
into after the date of the Indenture and in existence at the Incurrence Time
(less the aggregate amount of proceeds of such Sale and Leaseback Transactions
which shall have been applied in accordance with the terms of the Indenture),
does not exceed 15% of its Consolidated Net Tangible Assets (defined below).
(Section 10.07)
Restrictions on Sale and Leaseback Transactions. The Indenture provides
that the Company will not itself, and will not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction involving any Principal
Property unless (1) the Company or such Restricted Subsidiary would, at the time
of entering into such arrangement, be entitled, without equally and ratably
securing the Debt Securities of each series then outstanding, to incur, issue,
assume or guarantee debt secured by a Lien on such property, pursuant to the
provisions described in clauses (1) to (16) inclusive under "Restrictions on
Liens" above; or (2) the Company, within 180 days after the sale or transfer,
applies to the retirement of its Funded Debt (defined below) (subject to credits
for certain voluntary retirements of Funded Debt) an amount equal to the greater
of (a) the net proceeds of the sale of the Principal Property sold and leased
back pursuant to such arrangement or (b) the fair market value of the Principal
Property so sold and leased back. This restriction will not apply to a Sale and
Leaseback Transaction between the Company and an Affiliate or between a
Restricted Subsidiary and an Affiliate or involving the taking back of a lease
for a period of less than three years. (Section 10.08)
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries,
or any of them, may enter into a Sale and Leaseback Transaction that would
otherwise be prohibited as set forth above, provided, that at the time of such
transaction, after giving effect thereto, the sum of (i) the aggregate amount of
the Attributable Debt in respect of all Sale and Leaseback Transactions existing
at such time which could not have been entered into except in reliance on this
paragraph and (ii) the aggregate amount of Outstanding debt secured by Liens in
reliance on the second paragraph under the caption "Restrictions on Liens" above
does not at such time exceed 15% of the Consolidated Net Tangible Assets of the
Company. (Section 10.08)
CERTAIN DEFINITIONS
"Attributable Debt" means, in respect of a Sale and Leaseback Transaction
and as of any particular time, the present value (discounted at the rate of
interest implicit in the terms of the lease involved in such Sale and Leaseback
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for net rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates or similar charges or any amounts required to be
paid by such lessee thereunder contingent upon monetary inflation or the amount
of sales, maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges) during the remaining term of such lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). (Section 1.02)
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, and (b) all current
liabilities, as reflected in the Company's latest audited consolidated balance
sheet contained in the Company's most recent annual report to its stockholders
under Rule 14a-3 of the Exchange Act prior to the time as of which "Consolidated
Net Tangible Assets" shall be determined. (Section 1.02)
"Funded Debt" means all indebtedness maturing one year or more from the
date of the creation thereof, all indebtedness directly or indirectly renewable
or extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the
7
<PAGE> 9
creation thereof, and all indebtedness under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more. (Section 1.02)
"Lien" means any mortgage, lien, pledge, charge, security interest or other
encumbrance. (Section 1.02)
"Maturity," when used with respect to any Debt Security, means the date on
which the principal of such Debt Security or an installment of principal or, in
the case of an Original Issue Discount Security, the principal amount payable
upon a declaration of acceleration, becomes due and payable as therein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise. (Section 1.02)
"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
deceleration of acceleration of the Maturity thereof. (Section 1.02)
"Principal Property" means any single office building, manufacturing or
processing plant, warehouse or other similar facility owned by the Company or
any Restricted Subsidiary, the book value of the property, plant and equipment
of which (as shown, net of depreciation, on the books of the owner or owners) is
not less than 2% of the Consolidated Net Tangible Assets at the end of the most
recent fiscal year of the Company, reflected in the latest audited consolidated
statement of financial position contained in the Company's most recent annual
report to its stockholders, except (a) any such plant or facility (i) owned
jointly or in common with one or more Persons other than the Company and its
Restricted Subsidiaries, in which the interest of the Company and its Restricted
Subsidiaries does not exceed 50%, or (ii) which the Board of Directors
determines by Board Resolution in good faith is not of material importance to
the total business conducted, or assets owned, by the Company and its
Subsidiaries as an entirety, or (b) any portion of any such plant or facility
which the Board of Directors determines by Board Resolution in good faith not to
be of material importance to the use or operation thereof. (Section 1.02)
"Restricted Subsidiary" means any Subsidiary which as of such time meets
the definition of a "significant subsidiary" contained, as of the date of the
Indenture, in Regulation S-X of the Commission. (Section 1.02)
"Subsidiary" means a corporation of which a majority of the Capital Stock
having voting power under ordinary circumstances to elect a majority of the
board of directors of such corporation is owned by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries. (Section
1.02)
"U.S. Government Obligation" means (a) any security which is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
clause (a) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt. (Section 13.04)
MERGERS AND SALES OF ASSETS BY THE COMPANY
The Indenture provides that the Company shall not consolidate with or merge
with or into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless, (1) either (a) the
Company shall be the continuing corporation or (b) any successor or purchaser
(i) is a corporation, partnership or trust organized and validly existing under
the laws of the United States or any state thereof or the District of Columbia
and (ii) expressly assumes, by a supplemental indenture, all of the obligations
of the Company under the Debt Securities and the Indenture; (2) immediately
after giving effect
8
<PAGE> 10
to such transaction, no Event of Default shall have occurred and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance,
transfer or lease, properties or assets of the Company or any Restricted
Subsidiary would become subject to a Lien which would not be permitted by the
Indenture, the Company or, if applicable, the successor to the Company, shall
take such steps as shall be necessary to secure the Debt Securities equally and
ratably with debt secured by such Lien; and (4) certain other conditions are
met. (Section 8.01) The successor Person formed by such consolidation or into
which the Company is merged or the successor Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of the Company under the Indenture, and the
Company, except in the case of a lease of its properties and assets
substantially as an entirety, shall be relieved of all obligations and covenants
under the Indenture and the Debt Securities. (Section 8.02)
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default"
with respect to the Debt Securities of any series, unless otherwise provided
with respect to such series: (1) failure to pay any interest upon any Debt
Security of that series when due and payable, continued for 30 days; (2) failure
to pay principal of or any premium on any Debt Security of that series at its
Maturity; (3) failure to deposit any sinking fund payment, when and as due, by
the terms of any Debt Security of that series, continued for 30 days; (4)
failure to perform any other covenant of the Company in the Indenture (other
than a covenant included in the Indenture solely for the benefit of a series of
Debt Securities other than that series), continued for 90 days after written
notice as provided under the Indenture; (5) certain events in bankruptcy,
insolvency or reorganization involving the Company; (6) any other Event of
Default provided with respect to Debt Securities of that series. (Section 5.01)
If an Event of Default (other than an Event of Default described in clause
(5) in the above paragraph) with respect to any series of the Debt Securities
Outstanding under the Indenture occurs and is continuing, then either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of such series by notice as provided in the
Indenture may declare the principal amount (or, if any of the Debt Securities of
such series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Debt Securities as may be specified by the terms
thereof) of all the Debt Securities of that series to be immediately due and
payable. If an Event of Default described in clause (5) in the above paragraph
with respect to any series of Debt Securities Outstanding under the Indenture
occurs, the principal amount (or, if any of the Debt Securities of that series
are Original Issue Discount Securities, such portion of the principal amount of
such Debt Securities as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. At any time after a
declaration of acceleration with respect to Debt Securities of any series has
been made, but before a judgment or decree for payment of money has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 5.02)
Subject to the provisions of the Trust Indenture Act, the Indenture
provides that the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
indemnity. (Sections 6.01 and 6.03). Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, with respect to the Debt Securities of that series.
(Section 5.12)
The Company is required to furnish to the Trustee annually a statement by
certain officers as to the performance by the Company of certain of its
obligations under the Indenture and as to any default in such performance.
(Section 10.04)
The Indenture provides that notwithstanding any other provisions thereof,
the right of any Holder to receive payment of the principal of (and premium, if
any) and interest on the Debt Securities or to institute suit for the
enforcement of such payment shall not be impaired without such Holder's consent.
(Section 5.08)
9
<PAGE> 11
MODIFICATION AND WAIVER
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 Outstanding Debt Securities of all series which are
affected by the modification or amendment (voting as one class), to execute
supplemental indentures modifying the Indenture or any supplemental indenture;
provided, however, that without the consent of the Holder of each Debt Security
affected by such modification, no such modification shall, (1) change the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any Debt Security, or reduce the principal amount thereof, or reduce the rate of
interest thereon, or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security or any
other Debt Security that would be due and payable upon acceleration of the
maturity thereof, change the place of payment where, or the currency in which,
any Debt Security is payable, impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof, or (2)
reduce the percentage of aggregate principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
any such modification or amendment of the Indenture, or (3) modify the foregoing
requirements or reduce the percentage of Outstanding Debt Securities necessary
to waive compliance with certain provisions of the Indenture or for waiver of
certain defaults. (Section 9.02)
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of all series that would be affected by such a
waiver (voting as one class) may waive compliance by the Company with certain
provisions of the Indenture. (Section 10.09) The Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of all
series that would be affected by such a default (voting as one class) may, on
behalf of the Holders of all Debt Securities of such series, waive any past
default under the Indenture with respect to Debt Securities of such series,
except a default (1) in the payment of principal of, or any premium or interest
on, any Debt Security of such series, or (2) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series affected.
(Section 5.13)
The Indenture provides that, in determining whether the Holders of the
requisite aggregate principal amount of the Outstanding Debt Securities have
given, made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action thereunder as of any date, (a) the principal
amount of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof to such date,
(b) if, as of such date, the principal amount payable at the Stated Maturity of
a Debt Security is not determinable, the principal amount of such Debt Security
which shall be deemed to be Outstanding shall be the amount as established in or
pursuant to a Board Resolution and set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more
supplemental indentures, prior to the issuance of such Debt Securities, (c) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner as
described in clause (b) above, of the principal amount of such Debt Security,
(or, in the case of a Debt Security described in clause (a) or (b) above, of the
amount determined as provided in such clause), and (d) Debt Securities owned by
the Company or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Debt Securities which the Trustee knows to
be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such
other obligor. (Section 1.02)
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<PAGE> 12
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise specified in an applicable Prospectus Supplement, the
following provisions relating to defeasance and discharge of indebtedness, or
relating to defeasance of certain covenants in the Indenture, will apply to the
Debt Securities of any series, or to any specified part of a series. (Section
13.01)
Defeasance and Discharge. The Indenture provides that the Company will be
discharged from all its obligations with respect to such Debt Securities (except
for certain obligations to exchange or register the transfer of Debt Securities,
to replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in trust for
the benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay any installment of principal of and any premium and interest
on and any mandatory sinking fund payments in respect of such Debt Securities on
the respective Stated Maturities in accordance with the terms of the Indenture
and such Debt Securities. Such defeasance or discharge may occur only if, among
other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Company has received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a change
in tax law, in either case to the effect that Holders of such Debt Securities
will not recognize gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge were not to occur. (Sections
13.02 and 13.04)
Defeasance of Certain Covenants. The Indenture provides that the Company
may omit to comply with certain restrictive covenants described under the
captions "Restrictions on Liens" and "Restrictions on Sale and Leaseback
Transactions" above and any that may be described in the applicable Prospectus
Supplement or Prospectus Supplements, and the occurrence of certain Events of
Default and any that may be described in the applicable Prospectus Supplement,
will be deemed not to be or result in an Event of Default, in each case with
respect to such Debt Securities. In order to do so, the Company will be required
to deposit, in trust for the benefit of the Holders of such Debt Securities,
money or U.S. Government Obligations, or both, which through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay any installment of the principal of
and any premium and interest on and any mandatory sinking fund payments in
respect of such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. The Company
will also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not recognize
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 13.03 and 13.04)
THE TRUSTEE
The Trustee is trustee under the Indenture pursuant to which the Debt
Securities are to be issued. Effective January 1, 1997 the Trustee is also
master trustee and custodian for the Fluor Corporation Master Retirement Trust,
the Fluor Employee Benefit Trust and the Fluor Corporation Executive Deferred
Compensation Program Trust. In addition, the Company maintains with the Trustee
one inactive corporate demand deposit account.
Upon the occurrence of an Event of Default or an event which, after notice
or lapse of time or both, would become an Event or Default, or upon the
occurrence of a default under such other indenture, the Trustee may be deemed to
have a conflicting interest with respect to the Debt Securities for purposes of
the Trust Indenture Act and, unless the Trustee is able to eliminate any such
conflicting interest, the Trustee may
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<PAGE> 13
be required to resign as Trustee under the Indenture. In that event, the Company
would be required to appoint a successor Trustee for the Indenture.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 1.13)
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to one or more underwriters for public
offering and sale by them or may sell Debt Securities to investors directly or
through agents or dealers. Any such underwriter or agent involved in the offer
and sale of the Debt Securities will be named in an applicable Prospectus
Supplement or Prospectus Supplements.
Underwriters may offer and sell the Debt Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may also offer and sell the Debt Securities in
exchange for one or more of its outstanding issues of Debt Securities. The
Company also may, from time to time, authorize underwriters acting as the
Company's agents to offer and sell the Debt Securities upon the terms and
conditions set forth in any Prospectus Supplement. In connection with the sale
of Debt Securities, underwriters may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Debt Securities for whom they may
act as agent. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions (which may be changed from
time to time) from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement or Prospectus
Supplements. Underwriters, dealers and agents participating in the distribution
of the Debt Securities may be deemed to be underwriters under the Securities
Act, and any discounts and commissions received by them and any profit realized
by them on resale of the Debt Securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements with the Company, to indemnification
against and contribution toward, certain civil liabilities, including
liabilities under the Securities Act, and to reimbursement by the Company for
certain expenses.
If so indicated in an applicable Prospectus Supplement or Prospectus
Supplements, the Company will authorize agents or dealers acting as the
Company's agents to solicit offers by certain institutions to purchase Debt
Securities from the Company at the public offering price set forth in such
Prospectus Supplement or Prospectus Supplements pursuant to Delayed Delivery
Contracts ("Contracts") providing for payment and delivery on the date or dates
stated in such Prospectus Supplement or Prospectus Supplements. Each Contract
will be for an amount not less than, and the aggregate principal amount of Debt
Securities sold pursuant to Contracts shall not be less nor more than, the
respective amounts stated in such Prospectus Supplement or Prospectus
Supplements. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Debt Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Debt Securities are
being sold to underwriters, the Company shall have sold to such underwriters the
total principal amount of the Debt Securities less the principal amount thereof
covered by Contracts.
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<PAGE> 14
The Debt Securities may or may not be listed on a national securities
exchange or a foreign securities exchange. The Debt Securities will be a new
issue of securities with no established trading market. Any underwriters or
agents to or through whom Debt Securities are sold by the Company for public
offering and sale may make a market in such Debt Securities, but such
underwriters and agents will not be obligated to do so and may discontinue any
market-making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any Debt Securities.
Certain of the underwriters, dealers and/or agents and their associates may
be customers of, engage in transactions with and perform services for the
Company, including its subsidiaries, in the ordinary course of business.
LEGAL MATTERS
Certain legal matters with respect to the legality of the Debt Securities
being offered hereby will be passed upon for the Company by Gibson, Dunn &
Crutcher LLP, Orange County, California.
EXPERTS
The consolidated financial statements of Fluor Corporation incorporated by
reference in Fluor Corporation's Annual Report on Form 10-K for the year ended
October 31, 1995, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon incorporated by reference therein and
incorporated herein by reference. Such financial statements are, and audited
financial statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining
to such financial statements (to the extent covered by consents filed with the
Securities and Exchange Commission) given upon the authority of such firm as
experts in accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED HEREIN OR THEREIN OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THE PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH
INFORMATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 3
Use of Proceeds....................... 3
Ratios of Earnings to Fixed Charges... 3
Description of the Debt Securities.... 3
Plan of Distribution.................. 12
Legal Matters......................... 13
Experts............................... 13
</TABLE>
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FLUOR CORPORATION
$400,000,000
------------------------
DEBT SECURITIES
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<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this offering to be borne by the
Company are:
<TABLE>
<S> <C>
Registration fees......................................................... $121,212
Printing fees and expenses................................................ 25,000
Accounting fees and expenses.............................................. 25,000
Trustee fees.............................................................. 6,000
Rating agency fees........................................................ 205,000
Legal fees and expenses................................................... 100,000
Blue Sky fees............................................................. 10,000
Miscellaneous............................................................. 15,000
--------
Total........................................................... $507,212
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation requires that directors
and officers be indemnified to the maximum extent permitted by Delaware law.
The General Corporation Law of the State of Delaware (the "Delaware GCL")
provides in general that a director or officer of a corporation (i) shall be
indemnified by the corporation for all expenses of litigation or other legal
proceedings when he is successful on the merits, (ii) may be indemnified by the
corporation for the expenses, judgments, fines and amounts paid in settlement of
such litigation (other than a derivative suit) even if he is not successful on
the merits if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation (and, in the case
of a criminal proceeding, had no reasonable cause to believe his conduct was
unlawful), and (iii) may be indemnified by the corporation for expenses of a
derivative suit (a suit by a stockholder alleging a breach by a director or
officer of a duty owed to the corporation), even if he is not successful on the
merits, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, provided that no
such indemnification may be made in accordance with this clause (iii) if the
director or officer is adjudged liable to the corporation, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses. The
indemnification described in clauses (ii) and (iii) above shall be made only
upon order by a court or a determination by (a) a majority of a quorum of
disinterested directors, (b) under certain circumstances, independent legal
counsel or (C) the stockholders, that indemnification is proper because the
applicable standard of conduct is met. Expenses incurred by a director or
officer in defending an action may be advanced by the corporation prior to the
final disposition of such action upon receipt of an undertaking by such director
or officer to repay such expenses if it is ultimately determined that he is not
entitled to be indemnified in connection with the proceeding to which the
expenses related.
The Company's Restated Certificate of Incorporation includes a provision
eliminating, to the fullest extent permitted by Delaware law, director liability
for monetary damages for breaches of fiduciary duty.
II-1
<PAGE> 17
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1.1 Form of Distribution Agreement
4 Form of Indenture between the Company and Bankers Trust Company, as Trustee (including
the forms of the debt securities)
5 Opinion of Gibson, Dunn & Crutcher LLP
12 Statement re Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24.1 Manually signed Powers of Attorney executed by certain Fluor directors and officers
24.2 Manually signed Powers of Attorney executed by certain Fluor directors
25 Statement of Eligibility and Qualification on Form T-1 of Bankers Trust Company, as
Trustee under the Indenture
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To included any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense
II-2
<PAGE> 18
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the Trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Securities Act.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on December 19, 1996.
FLUOR CORPORATION
By: /s/ LAWRENCE N. FISHER
------------------------------------
Lawrence N. Fisher
Senior Vice President of Law and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ ------------------
<S> <C> <C>
* Chairman of the Board, Chief December 19, 1996
- ------------------------------------------ Executive Officer and Director
Leslie G. McCraw (Principal Executive Officer)
* Vice President and Chief December 19, 1996
- ------------------------------------------ Financial Officer (Principal
J. Michal Conaway Financial and Accounting
Officer)
* Director December 19, 1996
- ------------------------------------------
Donald L. Blankenship
* Director December 19, 1996
- ------------------------------------------
Carroll A. Campbell, Jr.
* Director December 19, 1996
- ------------------------------------------
Hugh K. Coble
* Director December 19, 1996
- ------------------------------------------
Peter J. Fluor
* Director December 19, 1996
- ------------------------------------------
David P. Gardner
* Director December 19, 1996
- ------------------------------------------
William R. Grant
</TABLE>
II-4
<PAGE> 20
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ ------------------
<S> <C> <C>
* Director December 19, 1996
- ------------------------------------------
Bobby R. Inman
* Director December 19, 1996
- ------------------------------------------
Robert V. Lindsay
* Director December 19, 1996
- ------------------------------------------
Vilma S. Martinez
* Director December 19, 1996
- ------------------------------------------
Buck Mickel
* Director December 19, 1996
- ------------------------------------------
Martha R. Seger
*By: /s/ LAWRENCE N. FISHER
- ------------------------------------------
Lawrence N. Fisher,
Attorney-in-Fact
</TABLE>
Manually signed powers of attorney authorizing Lawrence N. Fisher, Robert R.
Dryden and Raymond M. Bukaty, and each of them, to sign this Registration
Statement and any amendments thereto as attorneys-in-fact for certain directors
and officers of the issuer are included herein as Exhibits 24.1 and 24.2 hereto.
II-5
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
- ------- ---------------------------------------------------------------------- -------------
<S> <C> <C>
1.1 Form of Distribution Agreement........................................
4 Form of Indenture between the Company and Bankers Trust Company, as
Trustee (including the forms of the debt securities)..................
5 Opinion of Gibson, Dunn & Crutcher LLP................................
12 Statement re Computation of Ratio of Earnings to Fixed Charges........
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5)........
23.2 Consent of Ernst & Young LLP..........................................
24.1 Manually signed Powers of Attorney executed by certain Fluor directors
and officers..........................................................
24.2 Manually signed Powers of Attorney executed by certain Fluor
directors.............................................................
25 Statement of Eligibility and Qualification on Form T-1 of Bankers
Trust Company, as Trustee under the Indenture.........................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
FLUOR CORPORATION
$400,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
__________, 1996
________________________
________________________
________________________
Ladies and Gentlemen:
Fluor Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to $400,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of any of the Agents to
purchase any Securities as principal.
The Securities will be issued under an indenture, dated as of December
___, 1996 (the "Indenture"), between the Company and Bankers Trust Company, as
trustee (the "Trustee"). The Securities shall have the maturity ranges, interest
rates, if any, redemption provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 333-_____ ) in
respect of debt securities of the Company, including the Securities, has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in the
<PAGE> 2
form heretofore delivered or to be delivered to such Agent, excluding exhibits
to such registration statement, but including all documents incorporated by
reference in the prospectus included in the registration statement, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended (the
"Act"), each in the form heretofore delivered to the Agents); and no stop order
suspending the effectiveness of any such registration statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration statements
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the registration statement at the time such part of
the registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became effective, is
hereinafter collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company 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; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented (including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to Securities sold pursuant
to this Agreement, in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in
2
<PAGE> 3
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any Agent
expressly for use in the Prospectus as amended or supplemented to relate to a
particular issuance of securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects, to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities or the information
contained in the Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act filed as an exhibit to the Registration Statement (the
"Form T-1");
(d) The Company and its subsidiaries considered as a whole have
not sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company and its subsidiaries considered
as a whole or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business in
an amount that is material to the business of the Company and its consolidated
subsidiaries considered as a whole so as to require such qualification; each
Material Subsidiary (as defined below) of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified as a foreign corporation for
the transaction of business and in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification (as used in this agreement, the term "Material
Subsidiary" means a subsidiary of the Company which is a significant subsidiary
under Rule 1-02 of Regulation S-X of the Commission);
3
<PAGE> 4
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when executed,
authenticated, issued and delivered pursuant to this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the Securities of any
particular issuance of Securities will conform, in all material respects, to the
descriptions thereof in the Prospectus as amended or supplemented to relate to
such issuance of Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with the provisions of the Securities, the Indenture, this Agreement and
any Terms Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which the Company or any of its Material Subsidiaries is a
party or by which the Company or any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Material
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation, as amended, or the By-Laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
Material Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the solicitation of offers to
purchase Securities, the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the Agents of offers to
purchase Securities from the Company and with purchases of Securities by any
Agent as principal, as the case may be, in each case in the manner contemplated
hereby;
4
<PAGE> 5
(i) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, which are required to be disclosed in the Prospectus,
or which could reasonably be expected, in the opinion of the Company,
individually or in the aggregate, to have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries considered as a whole, and, to the best of
the Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(j) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than such Securities)
that shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of debt securities registered under the Registration
Statement.
2. (a) On the basis of the representations and warranties, and subject
to the terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use its reasonable
best efforts to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt securities with a
maturity at the time of original issuance of more than nine (9) months except
pursuant to this Agreement, any Terms Agreement or except pursuant to a private
placement not constituting a public offering under the Act or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement
5
<PAGE> 6
that does not provide for a continuous offering of medium-term debt securities.
However, the Company reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own behalf in transactions with
persons other than broker-dealers, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable
with respect to such sale. These provisions shall not limit Section 4(f) hereof
or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practical, but in
any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed. During such period, the
Company shall not be required to comply with the provisions of Sections 4(h),
4(i), 4(j) and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the documents
required to be delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the Agents
shall have no obligation to solicit offers to purchase the Securities until such
documents have been received by the Agents. In addition, any failure by the
Company to comply with its obligations hereunder, including without limitation
its obligations to deliver the documents required by Sections 4(h), 4(i), 4(j)
and 4(k), shall automatically terminate the Agents' obligations hereunder,
including without limitation their obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder as principal.
The Company may authorize any other firm (an "Additional Agent") to act
as its agent to solicit offers for the purchase of Securities upon 24 hours'
prior notice to such Agents as are at the time parties to this Agreement. Each
Additional Agent shall execute a copy of this Agreement and become a party
hereto. From and after the time such Additional Agent shall have executed a copy
of this Agreement, the term "Agent" as used in this Agreement shall mean the
Agent and Additional Agent.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
6
<PAGE> 7
Commission
(percentage of
aggregate
Range of Maturities principal amount
of Securities sold)
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years to 30 years
From more than 30 years to less than 50 years
50 years and more
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the Company and
such Agent shall otherwise agree) a Terms Agreement which will provide for the
sale of such Securities to, and the purchase thereof by, such Agent; a Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth; each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities; and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer the Securities purchased by it as
principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein. Each
time and date of delivery
7
<PAGE> 8
of and payment for Securities to be purchased by an Agent as principal, whether
set forth in a Terms Agreement or in accordance with the Administrative
Procedure, is referred to herein as a "Time of Delivery".
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents at
the offices of ________________________ at ___________________ time, on the date
of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof or (B) after
the date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable notice thereof;
(ii) To prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b)(3) under the Act not later
than the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used;
(iii) To make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing Supplement and
other than any prospectus supplement relating solely to securities other than
the Securities, at any time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon;
(iv) To file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become effective
or any supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by such
Agent and other than any prospectus supplement relating solely to securities
other than the Securities) has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and
8
<PAGE> 9
(v) In the event of the issuance of any such stop order or
of any such order preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions in the United States as such Agent may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; PROVIDED, HOWEVER, 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;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as provided
in the Administrative Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as principal) and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such Agent, in its
capacity as agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than one
business day later); and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to so
advise such Agent promptly by telephone (with confirmation in writing) and to
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance; PROVIDED, HOWEVER, that if during such same period such Agent
continues to own Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its consolidated subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
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<PAGE> 10
(e) So long as Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional public information
concerning the business and financial condition of the Company as such Agent may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and continuing
to and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company by such
Agent and (ii) the related Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which both
mature more than 9 months after such Time of Delivery and are substantially
similar to the Securities, without the prior consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be an affirmation to
such Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by a
Pricing Supplement or by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Securities) and each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by _______________, counsel to the Agents, as
a condition to the purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement or by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Securities), each time a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus and each
time the Company sells Securities to such Agent as principal pursuant to
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<PAGE> 11
a Terms Agreement and such Terms Agreement specifies the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent the written opinion of _______________, counsel for the
Company, or other counsel for the Company reasonably satisfactory to such Agent,
dated the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, covering the matters referred to in
Section 6(c) hereof, which was last furnished to such Agent to the same extent
as though it were dated the date of such letter authorizing reliance (except
that the statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such opinion, an opinion of the same tenor as the opinion
of such counsel referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (i) to set forth amended or supplemental
financial information consisting of financial information as of and for a fiscal
quarter or year ("Regular Financial Information") contained in a Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, respectively, or by the
incorporation by reference in the Registration Statement or the Prospectus of
such Regular Financial Information, or (ii) to set forth amended or supplemental
financial statements, other than Regular Financial Information, which in the
judgment of an Agent is material to the offer and sale of the Securities
("Extraordinary Financial Information"), or by the incorporation by reference in
the Registration Statement or the Prospectus of such Extraordinary Financial
Information and, in the case of this subparagraph (ii), upon reasonable request
of such Agent, and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement to furnish such Agent a letter as soon
as practicable and in no event later than ten days following such amendment,
supplement or incorporation, or on such Time of Delivery, as the case may be,
dated the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent,
of the same tenor as the letter referred to in Section 6(d) hereof but modified
to relate to the Registration Statement and the Prospectus as amended or
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, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; PROVIDED, HOWEVER, that, with
respect to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matter made in the letter referred to in Section 6(d) hereof which was last
furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement or by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Securities), each time a document filed under the Act
or the Exchange Act is incorporated by reference into
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<PAGE> 12
the Prospectus and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such sale,
as the case may be, in such form and executed by such officers of the Company as
shall be reasonably satisfactory to such Agent, to the effect that the
statements contained in the certificate referred to in Section 6(g) hereof which
was last furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date), or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(g) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by such Agent
the right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any condition
set forth in Section 6(a), 6(e) or 6(f) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(e) and
6(f), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(e) and 6(f) on behalf of
any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement,
any Indenture, any Blue Sky and Legal Investment Memoranda, and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including reasonable fees and disbursements of counsel for
the Agents in connection with such qualification and in connection with the Blue
Sky and legal investment memoranda; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing the Securities;
(viii) the fees and
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<PAGE> 13
expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Company and the reasonable fees and disbursements of counsel
for any Trustee or such agent in connection with any Indenture and the
Securities; (ix) any advertising expenses connected with the solicitation of
offers to purchase and the sale of Securities so long as such advertising
expenses have been approved by the Company; and (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder which
are not otherwise specifically provided for in this Section . Except as provided
in Sections 7 and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
reasonable discretion, to the condition that all representations and warranties
and other statements of the Company herein (and, in the case of an obligation of
an Agent under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities 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 under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) _________________, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, with respect to the incorporation of the Company, the validity of the
Indenture, the Securities, the Registration Statement, the Prospectus as amended
or supplemented and other related matters as such Agent may reasonably request,
and (ii) if and to the extent reasonably requested by such Agent, with respect
to each applicable date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in lieu of
such an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
13
<PAGE> 14
to such date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) ____________________, counsel to the Company, or other
counsel reasonably satisfactory to such Agent, shall have furnished to such
Agent his (or their) written opinions (1) dated the Commencement Date to the
effect set forth below and (2) dated each applicable date referred to in Section
4(i) hereof that is on or prior to such Solicitation Time or Time of Delivery,
as the case may be, to the effect set forth below and in each case in form and
substance reasonably satisfactory to such Agent. Such counsel shall opine that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each jurisdiction in the United States other than Delaware in which it
owns or leases plants or other major real property, so as to require such
qualification and where the failure to be so qualified or in good standing
would have a material adverse effect on the operations or financial condition
of the Company and its subsidiaries, taken as a whole;
(iv) Each Material Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; all of the issued shares of capital
stock of each such Material Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors' qualifying
shares and as otherwise set forth in the Company's most recent annual report on
Form 10-K) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject, which are
required to be disclosed in the Prospectus and which could reasonably be
expected, individually or in the aggregate, to have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole; and, to
the best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Company;
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<PAGE> 15
(vii) The Securities have been duly authorized and, when
duly executed, issued and delivered by the Company and authenticated by the
Trustee and delivered against the purchase price therefor specified herein, will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Indenture conforms and the
Securities will conform in all material respects to the descriptions thereof in
the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(ix) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein contemplated will not in any
material respect conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Material Subsidiaries is subject, which conflict, breach or
default would singly or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and if subsidiaries, taken as a whole, nor will such actions
result in any violation of the provisions of the Company's Certificate of
Incorporation or By-laws or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its Material Subsidiaries or any of their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable Terms Agreement or
the Indenture, except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the solicitation by the Agents of offers to purchase Securities
from the Company and with purchases of Securities by an Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
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<PAGE> 16
(xi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial statements and
related schedules and other financial data therein, as to which such counsel
need express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
misleading; and
(xii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements thereto made
by the Company prior to the date of such opinion (other than the financial
statements and related schedules and other financial data contained or
incorporated by reference therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the date of such opinion (other than the financial statements and
related schedules and other financial data contained or incorporated by
reference therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as of the date of such opinion, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial statements and
related schedules and other financial data contained or incorporated by
reference therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement
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<PAGE> 17
or the Prospectus as amended or supplemented which are not filed or incorporated
by reference or described as required;
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and with respect to each applicable date referred to in
Section 4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public accountants who
have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or such applicable
date, as the case may be, in form and substance satisfactory to such Agent, to
the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the Exchange Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial
statements and supporting schedule(s) of the Company and its subsidiaries
examined by them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules and
regulations thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the applicable published rules and regulations thereunder;
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available interim
financial statement of the Company and its indicated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with respect to
the unaudited consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its subsidiaries, and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such inquiries and procedures nothing came to their attention that
caused them to believe that: (A) the unaudited consolidated financial statements
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act and the
applicable published rules and regulations thereunder or were not fairly
presented in conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference therein, or
(B) at a specified date not more than five (5) days prior to the date of such
letter, there was any change in the consolidated capital stock or any increase
in consolidated long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its subsidiaries, in
each case as compared with the amounts shown on the most
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<PAGE> 18
recent consolidated balance sheet of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and Prospectus or,
during the period from the date of such balance sheet to a specified date not
more than five (5) days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated revenues or net income of the Company and its subsidiaries, except
in each such case as set forth in or contemplated by the Registration Statement
and Prospectus or except for such exceptions enumerated in such letter as shall
have been agreed to by Agents and the Company;
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration Statement and
the Prospectus, and the limited procedures referred to in clause (iii) above,
they have carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration Statement
and Prospectus and which are specified by the Agents, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter;
(e) (i) The Company and its subsidiaries considered as a whole
shall not have sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in the capital
stock or long-term debt of the Company and its subsidiaries considered as a
whole 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 considered
as a whole, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the effect of
which, in any such case described in Clause (i) or (ii), is in the reasonable
judgment of such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers to purchase
Securities from the Company or the purchase by such Agent of Securities from the
Company as principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery;
(f) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or
New York State authorities; (iii) the
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outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in the reasonable judgment of
such Agent makes it impracticable or inadvisable to proceed with the
solicitation of offers to purchase Securities or the purchase of the Securities
from the Company as principal pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms contemplated in the Prospectus as
amended or supplemented; (iv) 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) under the Act; or (v) a public announcement by any such organization
that it has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities; and
(g) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form
and executed by such officers of the Company as shall be satisfactory to such
Agent, as to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to matters set forth in subsections (a) and (e) of this
Section 6, and as to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and, PROVIDED, FURTHER, that the Company shall not be
liable to any Agent under the indemnity agreement under this subsection (a) with
respect to any Preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such Agent results from the fact that such Agent sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required under the Act if the Company has previously furnished
copies thereof to such Agent and the loss, claim, damage or liability of such
19
<PAGE> 20
Agent results from an untrue statement of a material fact contained in the
Preliminary Prospectus which was corrected in such Prospectus as then amended or
supplemented.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by such
Agent expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
giving prior written notice to the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of
20
<PAGE> 21
any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each Agent on the other from the offering of the Securities to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and each Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Agent on the other shall be deemed to be in the
same proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer
21
<PAGE> 22
and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect to any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), 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 Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(iii) in any event, this Agreement shall remain in full force and effect insofar
as the fifth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and 9
hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advises
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and (i) if to _________________ shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to ____________
______________, Facsimile Transmission No. __________, Attention:
____________________, (ii) if to ______________, shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
_____________________, Facsimile Transmission No. ____________, Attention:
_________________, (iii) if to _________________, shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
_______________________, Facsimile Transmission No. ___________, Attention:
_______________, (iv) if to __________________, shall be sufficient in all
respects when
22
<PAGE> 23
delivered or sent by facsimile transmission or registered mail to
_______________________, Facsimile Transmission No. _____________, Attention:
__________.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
23
<PAGE> 24
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
FLUOR CORPORATION
By:___________________________
Name: ________________________
Title: ________________________
Accepted in New York, New York, as of the date hereof:
______________________________
By:___________________________
Name: ________________________
Title: ________________________
24
<PAGE> 1
EXHIBIT 4
FLUOR CORPORATION
INDENTURE
DATED AS OF DECEMBER _____, 1996
BANKERS TRUST COMPANY,
TRUSTEE
<PAGE> 2
CROSS REFERENCE TABLE(1)
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED:
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- -------
<S> <C>
310(a)(1)................................................................ 6.09
(a)(2)............................................................... 6.09
(a)(3)............................................................... N.A.(2)
(a)(4)............................................................... N.A.
(b).................................................................. 6.08
(c).................................................................. 6.13
311(a)................................................................... 6.13
(b).................................................................. 6.13
(c).................................................................. N.A.
312(a) .................................................................. 7.01, 7.02
(b).................................................................. 7.02
(c).................................................................. 7.02
313(a)................................................................... 7.03
(b).................................................................. 7.03
(c).................................................................. 7.03, 1.07
(d).................................................................. 7.03
314(a)................................................................... 7.04
(b).................................................................. N.A.
</TABLE>
(1) This Cross Reference Table shall not, for any purpose, be deemed to be part
of the Indenture.
(2) N.A. means "not applicable."
i
<PAGE> 3
CROSS REFERENCE TABLE
<TABLE>
<CAPTION>
Section Section
- ------- -------
<S> <C>
(c)(1)............................................................... 1.03
(c)(2)............................................................... 1.03
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 1.03
(f).................................................................. N.A.
315(a)................................................................... 6.03, 6.01
(b).................................................................. 6.02
(c).................................................................. 6.01
(d).................................................................. 6.01
(e).................................................................. 5.14
316(a)................................................................... 1.01
(a)(1)(A)............................................................ 5.12
(a)(1)(B)............................................................ 5.13
(a)(2)............................................................... N.A.
(b).................................................................. 5.08
317(a)(1) .............................................................. 5.03
(a)(2)............................................................... 5.04
(b).................................................................. 10.03
318...................................................................... 1.08
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
TABLE OF CONTENTS
<S> <C> <C> <C>
RECITALS OF THE COMPANY.................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................... 1
SECTION 1.01. RULES OF CONSTRUCTION............................................. 1
SECTION 1.02. DEFINITIONS....................................................... 2
SECTION 1.03. COMPLIANCE CERTIFICATES AND OPINIONS.............................. 8
SECTION 1.04. FORM OF DOCUMENTS DELIVERED TO TRUSTEE............................ 9
SECTION 1.05. ACTS OF HOLDERS; RECORD DATES..................................... 9
SECTION 1.06. NOTICES TO TRUSTEE AND COMPANY................................... 11
SECTION 1.07. NOTICE TO HOLDERS; WAIVER........................................ 11
SECTION 1.08. CONFLICT WITH TRUST INDENTURE ACT................................ 12
SECTION 1.09. EFFECT OF HEADINGS AND TABLE OF CONTENTS......................... 12
SECTION 1.10. SUCCESSORS AND ASSIGNS........................................... 12
SECTION 1.11. SEPARABILITY CLAUSE.............................................. 12
SECTION 1.12. BENEFITS OF INDENTURE............................................ 12
SECTION 1.13. GOVERNING LAW.................................................... 13
SECTION 1.14. LEGAL HOLIDAYS................................................... 13
ARTICLE TWO SECURITY FORMS............................................................. 13
SECTION 2.01. FORMS GENERALLY.................................................. 13
SECTION 2.02. FORM OF FACE OF SECURITY......................................... 14
SECTION 2.03. FORM OF REVERSE OF SECURITY...................................... 15
SECTION 2.04. FORM OF LEGEND FOR GLOBAL SECURITIES............................. 20
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................. 20
SECTION 2.06. FORMS OF CONVERSION NOTICE....................................... 20
ARTICLE THREE THE SECURITIES........................................................... 22
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................. 22
SECTION 3.02. DENOMINATIONS.................................................... 25
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING................... 25
SECTION 3.04. TEMPORARY SECURITIES............................................. 27
SECTION 3.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.............. 28
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................. 29
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED................... 30
SECTION 3.08. PERSONS DEEMED OWNERS............................................ 31
SECTION 3.09. CANCELLATION..................................................... 32
SECTION 3.10. COMPUTATION OF INTEREST.......................................... 32
ARTICLE FOUR SATISFACTION AND DISCHARGE................................................ 32
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.......................... 32
SECTION 4.02. APPLICATION OF TRUST MONEY....................................... 33
ARTICLE FIVE REMEDIES.................................................................. 33
SECTION 5.01. EVENTS OF DEFAULT................................................ 33
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT............... 34
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.. 36
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM................................. 36
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES...... 37
SECTION 5.06. APPLICATION OF MONEY COLLECTED................................... 37
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
SECTION 5.07. LIMITATION ON SUITS.............................................. 37
SECTION 5.08. RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST..... 38
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES............................... 38
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE................................... 38
SECTION 5.11. DELAY OR OMISSION NOT WAIVER..................................... 38
SECTION 5.12. CONTROL BY HOLDERS............................................... 39
SECTION 5.13. WAIVER OF PAST DEFAULTS.......................................... 39
SECTION 5.14. UNDERTAKING FOR COSTS............................................ 39
ARTICLE SIX THE TRUSTEE................................................................ 40
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.............................. 40
SECTION 6.02. NOTICE OF DEFAULTS............................................... 40
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE........................................ 40
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES........... 41
SECTION 6.05. MAY HOLD SECURITIES.............................................. 41
SECTION 6.06. MONEY HELD IN TRUST.............................................. 41
SECTION 6.07. COMPENSATION AND REIMBURSEMENT................................... 42
SECTION 6.08. CONFLICTING INTERESTS............................................ 42
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.......................... 42
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................ 42
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR........................... 44
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...... 45
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................ 45
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.............................. 45
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................ 47
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS........ 47
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS........... 47
SECTION 7.03. REPORTS BY TRUSTEE............................................... 47
SECTION 7.04. REPORTS BY COMPANY............................................... 47
ARTICLE EIGHT........................................................................... 48
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................... 48
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS............. 48
SECTION 8.02. SUCCESSOR SUBSTITUTED............................................ 48
ARTICLE NINE SUPPLEMENTAL INDENTURES................................................... 49
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS............... 49
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................. 50
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES............................. 51
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES................................ 51
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.............................. 51
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES............... 51
ARTICLE TEN COVENANTS.................................................................. 51
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST...................... 51
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY................................. 52
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST............... 52
SECTION 10.04. COMPLIANCE CERTIFICATE.......................................... 53
SECTION 10.05. CORPORATE EXISTENCE............................................. 53
SECTION 10.06. PAYMENT OF TAXES AND OTHER CLAIMS............................... 53
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
SECTION 10.07. LIMITATIONS ON LIENS............................................... 54
SECTION 10.08. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.................... 56
SECTION 10.09. WAIVER OF COVENANTS................................................ 57
ARTICLE ELEVEN REDEMPTION OF SECURITIES................................................... 57
SECTION 11.01. APPLICABILITY OF ARTICLE........................................... 57
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.............................. 58
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.................. 58
SECTION 11.04. NOTICE OF REDEMPTION............................................... 58
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE........................................ 59
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE.............................. 59
SECTION 11.07. SECURITIES REDEEMED IN PART........................................ 60
ARTICLE TWELVE SINKING FUNDS.............................................................. 60
SECTION 12.01. APPLICABILITY OF ARTICLE........................................... 60
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.............. 60
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND.......................... 60
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE....................................... 61
SECTION 13.01. COMPANY'S RIGHT WITH RESPECT TO DEFEASANCE OR COVENANT DEFEASANCE.. 61
SECTION 13.02. DEFEASANCE AND DISCHARGE........................................... 61
SECTION 13.03. COVENANT DEFEASANCE................................................ 62
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.................... 62
SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS............................................................ 63
SECTION 13.06. REINSTATEMENT...................................................... 64
ARTICLE FOURTEEN CONVERSION OF SECURITIES................................................. 64
SECTION 14.01. APPLICABILITY OF ARTICLE........................................... 64
SECTION 14.02. EXERCISE OF CONVERSION PRIVILEGE................................... 64
SECTION 14.03. NO FRACTIONAL SHARES............................................... 66
SECTION 14.04. ADJUSTMENT OF CONVERSION PRICE..................................... 66
SECTION 14.05. NOTICE OF CERTAIN CORPORATE ACTIONS................................ 66
SECTION 14.06. RESERVATION OF SHARES OF COMMON STOCK.............................. 67
SECTION 14.07. PAYMENT OF CERTAIN TAXES UPON CONVERSION........................... 67
SECTION 14.08. NONASSESSABILITY................................................... 68
SECTION 14.09. EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE.......... 68
SECTION 14.10. DUTIES OF TRUSTEE REGARDING CONVERSION............................. 69
SECTION 14.11. REPAYMENT OF CERTAIN FUNDS UPON CONVERSION......................... 69
</TABLE>
iii
<PAGE> 7
INDENTURE dated as of December ___, 1996, between Fluor
Corporation, a Delaware corporation (the "Company"), having its principal
executive office at 3353 Michelson Drive, Irvine, California 92698, and Bankers
Trust Company (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called a "Security"
or 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.
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 ratable benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. RULES OF CONSTRUCTION.
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) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted
accounting principles in the United States as in effect from time
to time 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
United States accounting principles as are generally accepted at
the date of such computation;
(4) "or" is not exclusive;
(5) "including" means including, without
limitation; and
(6) the words "herein," "hereof," and "hereunder"
and other of similar import refer to this Indenture as a whole
and not to any particular Article, Section , or other
subdivision.
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SECTION 1.02. DEFINITIONS.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.05.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, in respect of a Sale and Leaseback
Transaction and as of any particular time, the present value (discounted at the
rate of interest implicit in the terms of the lease involved in such Sale and
Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for net rental payments (excluding, however,
any amounts required to be paid by such lessee, whether or not designated as
rent or additional rent, on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates or similar charges or any amounts
required to be paid by such lessee thereunder contingent upon monetary inflation
or the amount of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges) during the remaining term of such lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as
contemplated by Section 3.01, with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
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"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Section 14.09, shares issuable on conversions of
Securities shall include only shares of the class designated as Common Stock of
the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided that if at any
time there shall be more than one such resulting class, the shares of each such
class than so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from such reclassifications bears to
the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, a Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, and (b) all
current liabilities, as reflected in the Company's latest audited consolidated
balance sheet contained in the Company's most recent annual report to its
stockholders under Rule 14a-3 of the Exchange Act prior to the time as of which
"Consolidated Net Tangible Assets" shall be determined.
"Corporate Trust Office" means the corporate trust office of the
Trustee at Four Albany Street, New York, New York 10006 at which at any
particular time its corporate trust business shall be administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"debt" means indebtedness for borrowed money.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section
3.07.
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"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities contemplated by Section
3.01.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"Event of Default" shall have the meaning set forth in Section
5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" has the meaning specified in Section 1.05.
"Funded Debt" means all indebtedness maturing one year or more
from the date of the creation thereof, all indebtedness directly or indirectly
renewable or extendible, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof, and all indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 2.04 (or
such legend as may be specified as contemplated by Section 3.01 for such
Securities).
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the Security Register.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including, for all purposes of
this instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, and shall include the terms of a particular series
of Securities established as contemplated in Section 3.01.
"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.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Legal Holiday" shall have the meaning set forth in Section 1.14.
"Lien" means any mortgage, lien, pledge, charge, security
interest or other encumbrance.
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"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal or,
in the case of an Original Issue Discount Security, the principal amount payable
upon a declaration of acceleration pursuant to Section 5.02, becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" shall have the meaning set forth in Section
5.01.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate signed in the
name of the Company by its Chairman of the Board, a Vice Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 10.04
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of,
or counsel to, the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefore satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been
effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
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provided, however, that in determining whether the Holders of the
requisite aggregate principal amount of the Outstanding
Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (a) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due
and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 5.02, (b) if, as of such
date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section
3.01, (c) the principal amount of a Security denominated in one
or more foreign currencies or currency units which shall be
deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated
by Section 3.01, of the principal amount of such Security, (or,
in the case of a Security described in Clause (a) or (b) above,
of the amount determined as provided in such Clause), and (d)
Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
3.01 with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"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, subject to the provisions of
Section 10.02, the principal of and any interest on the Securities of that
series are payable as specified as contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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"Principal Property" means any single office building,
manufacturing or processing plant, warehouse or other similar facility owned by
the Company or any Restricted Subsidiary, the book value of the property, plant
and equipment of which (as shown, net of depreciation, on the books of the owner
or owners) is not less than 2% of the Consolidated Net Tangible Assets at the
end of the most recent fiscal year of the Company, reflected in the latest
audited consolidated statement of financial position contained in the Company's
most recent annual report to its stockholders under Rule 14a-3 of the Exchange
Act, except (a) any such plant or facility (i) owned jointly or in common with
one or more Persons other than the Company and its Restricted Subsidiaries, in
which the interest of the Company and its Restricted Subsidiaries does not
exceed 50%, or (ii) which the Board of Directors determines by Board Resolution
in good faith is not of material importance to the total business conducted, or
assets owned, by the Company and its Subsidiaries as an entirety, or (b) any
portion of any such plant or facility which the Board of Directors determines by
Board Resolution in good faith not to be of material importance to the use or
operation thereof.
"Redemption Date" or "redemption date," when used with respect to
any Security to be redeemed, shall mean the date specified for redemption of
such Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "redemption price," when used with respect
to any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Restricted Subsidiary" means any Subsidiary which as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Commission.
"Sale and Leaseback Transaction" has the meaning specified in
Section 10.08.
"SEC" means the Securities and Exchange Commission.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securityholder" or "Holder" means a Person in whose name a
Security is registered in the Security Register.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest
on the Securities of any issue means a date fixed by the Trustee pursuant to
Section 3.07.
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"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the principal of
such Security or an installment of principal thereof or interest thereon is due
and payable.
"Subsidiary" means a corporation of which a majority of the
Capital Stock having voting power under ordinary circumstances to elect a
majority of the board of directors of such corporation is owned by (a) the
Company, (b) the Company and one or more Subsidiaries or (c) one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the
date of this Indenture, provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"U.S. Government Obligation" has the meaning specified in Section
13.04.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice-president."
SECTION 1.03. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that each Person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person,
he or she has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(4) a statement that, in the opinion of such Person, such
covenant or condition has been complied with.
SECTION 1.04. 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 such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her 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 is 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 1.05. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the same manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
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The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite aggregate principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed
to prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite aggregate
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the relevant
series in the manner set forth in Sections 1.06 and 1.07.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving and making of (a) any Notice of Default, (b) any declaration of
acceleration referred to in Section 5.02, (c) any request to institute
proceedings referred to in Section 5.07(2) or (d) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite aggregate principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite aggregate principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the
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Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Sections 1.06 and 1.07.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.07, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.06. NOTICES TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished, or filed in writing to or with the Trustee at Four
Albany Street, New York, New York 10006, Attention: Corporate
Trust Department; or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in
writing to the Trustee by the Company, Attention: Chief Financial
Officer.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
SECTION 1.07. NOTICE TO HOLDERS; WAIVER.
Any notice or communication given to a Holder of Securities shall
be mailed to such Securityholder at the Securityholder's address as it appears
on the registration books of the Security Registrar and shall be sufficiently
given if so mailed within the time prescribed for the giving of such notice.
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
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Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders of
Securities of a particular series, it shall mail a copy to the Trustee and each
Security Registrar, co-registrar or Paying Agent, as the case may be, with
respect to such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities.
SECTION 1.08. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with a provision of the TIA which is required under the TIA to be a part of and
govern this Indenture, the required provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.09. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.10. SUCCESSORS AND ASSIGNS.
All agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns, whether so expressed or not.
All agreements of the Trustee in this Indenture shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.11. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefits or any legal or
equitable right, remedy or claim under this Indenture.
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SECTION 1.13. GOVERNING LAW.
This indenture and the securities shall be governed by and
construed in accordance with the laws of the state of New York, as applied to
contracts made and performed within the state of New York, without regard to
principles of conflicts of law.
SECTION 1.14. LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including an Interest Payment Date, Redemption Date or Stated
Maturity of any Security, or a date for giving notice) is a Legal Holiday at any
Place of Payment or place for giving notice, then (notwithstanding any other
provision of this Indenture or of the Securities other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal need not be
made at such Place of Payment, or such other action need not be taken, on such
date, but the action shall be taken on the next succeeding day that is not a
Legal Holiday 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 or
such other date and to the extent applicable no Original Issue Discount or
interest, if any, shall accrue for the intervening period.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in substantially such form
(including global form) as set forth in this Article or in such other form as
shall be established by delivery to the Trustee of an Officers' Certificate or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the Officers executing such Securities as evidenced by their execution of the
Securities. The Officers' Certificate so establishing the form of Security, if
any, of any series shall be delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Securities.
The permanent Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner, all as determined by the Officers executing such Securities as
evidenced by their execution of such Securities.
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SECTION 2.02. FORM OF FACE OF SECURITY.
FLUOR CORPORATION
No._______ $________
Fluor Corporation, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to____________________________________________,
or registered assigns, the principal sum ______________________________________
of Dollars on ______________________________________________ [if the Security
is to bear interest prior to Maturity, insert --, and to pay interest thereon
from _________________________ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on
_______________________ and ___________________________ in each year, commencing
_________________, at the rate of $_________ per annum, until the principal
hereof is paid or made available for payment [if applicable, insert --,
provided that any principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of _________% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
_________________ or ________________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
Default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ________% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are
due until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ________% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable, insert --
any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in __________________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of
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<PAGE> 21
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
Fluor Corporation
By:________________________
Attest:
_______________________________
_______________________________
SECTION 2.03. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of December __, 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert --, limited in aggregate
principal amount to $____________________ ].
[If applicable, insert -- The Securities of this series are
subject to redemption prior to the Stated Maturity upon not less than 30 days'
notice by mail, [if applicable, insert -- (1) on __________ in any year
commencing with the year____________ and ending with the year ______________
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable,
insert -- on or after ,___________ 19__ ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ____________,___, and if redeemed] during the 12-month period
beginning _______________ of the years indicated,
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<PAGE> 22
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
and thereafter at a Redemption Price equal to _________% of the principal
amount, together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on __________ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after _____________ ], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning _________ of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR REDEMPTION
FOR REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
---- ------------------- -------------------
and thereafter at a Redemption Price equal to ________% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to ___________________, redeem any Securities of this
series as contemplated by [if applicable, insert -- Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having
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<PAGE> 23
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than __________% per annum].
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ___________ in each year beginning with the year
____________ and ending with the year ________ of [if applicable, insert -- not
less than $ ________ ("mandatory sinking fund") and not more than] $_________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
applicable, insert -- mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert-mandatory] sinking fund payments otherwise
required to be made [if applicable, insert -, in the inverse order in which they
become due].]
[If the Security is subject to redemption of any kind, insert --
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is convertible into Common Stock of the Company,
insert -- Subject to the provisions of the Indenture, the Holder of this
Security is entitled, at its option, at any time on or before [insert date]
(except that, in case this Security or any portion hereof shall be called for
redemption, such right shall terminate with respect to this Security or portion
hereof, as the case may be, so called for redemption at the close of business on
the date fixed for redemption as provided in the Indenture unless the Company
defaults in making the payment due upon redemption), to covert the principal
amount of this Security (or any portion hereof which is $1,000 or an integral
multiple thereof), into fully paid and non-assessable shares (calculated as to
each conversion to the nearest 1/100th of a share) of the Common Stock of the
Company, as said shares shall be constituted at the date of conversion, at the
conversion price of $ ____________ principal amount of Securities for each share
of Common Stock or at the adjusted conversion price in effect at the date of
conversion determined as provided in the Indenture, upon surrender of this
Security, together with the conversion notice hereon duly executed, to the
Company at the designated office or agency of the Company in
________________________, accompanied (if so required by the Company) by
instruments of transfer, in form satisfactory to the Company and to the trustee,
duly executed by the Holder or by its fully authorized attorney in writing. Such
surrender shall, if made during any period beginning at the close of business on
a Regular Record Date and ending at the opening of business on the Interest
Payment Date next following such Regular Record Date (unless this Security or
the portion being converted shall have been called for redemption on a
Redemption Date during such period), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date next preceding any Interest Payment
Date and on or before such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at such Regular Record
Date to receive an installment of interest (with certain exceptions provided in
the Indenture), no adjustment is to be made on conversion for interest accrued
hereon or for dividends on shares of Common Stock issued on conversion. The
Company is not required to issue fractional shares upon any such conversion, but
shall make adjustment therefor in cash
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<PAGE> 24
on the basis of the current market value of such fractional interest as provided
in the Indenture. The conversion price is subject to adjustment as provided in
the Indenture. In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party or the sale of
substantially all of the assets of the Company, the Indenture shall be amended,
without the consent of any Holders of Securities, so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the consolidation, merger or
sale by a holder of the number of shares of Common Stock into which this
Security might have been converted immediately prior to such consolidation,
merger or sale (assuming such holder of Common Stock failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of non-electing shares) [, assuming if such consolidation, merger
or sale is prior to _________, 19__ , that this Security were convertible at the
time of such consolidation, merger or sale at the initial conversion price
specified above as adjusted from __________, 19___ to such time pursuant to the
Indenture). In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.)
(If the Security is convertible into other securities of the
Company, specify the conversion features.)
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (a) of the amount of principal so declared due and payable
and (b) of interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and premium and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of more than 50% in aggregate
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
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<PAGE> 25
[If the Security is an Original Issue Discount Security, -- In
determining whether the Holders of the requisite aggregate principal amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture or whether a quorum is
present at a meeting of Holders of Securities, the principal amount of any
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon the acceleration of the Maturity thereof.]
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 90 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $___________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not
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<PAGE> 26
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
The Securities shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.04. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 3.01 for
the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Bankers Trust Company,
As Trustee
By__________________________________
Authorized Officer
SECTION 2.06. FORMS OF CONVERSION NOTICE.
To Fluor Corporation:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of the company in accordance with the terms of the Indenture referred to
in this Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If this Notice is being delivered on a date after the close of
business on a Regular Record Date and prior to the opening of business on the
related Interest Payment Date (unless this Security or the
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<PAGE> 27
portion thereof being converted has been called for redemption on a Redemption
Date within such period), this Notice is accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest payable on such
Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted (in an integral multiple of $1,000, if less
than all):
$_______________
Dated:__________
_________________________________________________________________
Signature(s) must be guaranteed by a commercial bank or trust
company or a member firm of a national stock exchange if shares
of Common Stock are to be delivered, or Securities to be issued,
other than to and in the name of the registered owner.
____________________________
Signature Guaranty
Fill in for registration of shares of Common Stock and Security
if to be issued otherwise than to the registered holder.
_____________________________ Social Security or Other Taxpayer
(Name) Identification Number_______________________
_____________________________
(Address)
_____________________________
Please print Name and Address
(including zip code number)
(The above conversion notice is to be modified, as appropriate, for conversion
into other securities or property of the Company.)
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited and all
principal of and any interest on the Securities shall be payable in Dollars.
The Securities may be issued in one or more series. There shall
be established, in or pursuant to a Board Resolution, and, subject to Section
3.03, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 and except
for any Securities which, pursuant to Section 3.03, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security
of the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest;
(4) the date or dates on which the principal or
installments of principal of any Securities of the series is
payable or the method of determination thereof and any rights to
extend such date or dates;
(5) the rate or rates at which any Securities of
the series shall bear interest, if any, or the method if any by
which such rate or rates are to be determined, the date or dates
from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for any such interest payable on any Interest Payment
Date;
(6) the place or places where, subject to the
provisions of Section 10.02, the principal of and any interest on
Securities of the series shall be payable, any Securities of the
series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price
or prices at which and the terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, and if other than
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<PAGE> 29
by a Company Order, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(8) 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, the conditions, if any, giving rise to such obligation,
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 redeemed or purchased, in whole or in part, and
any provisions for the remarketing of such Securities;
(9) the denominations in which any Securities of
the series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof;
(10) if the amount of payments of principal of or
any interest on any Securities of the series is to be determined
with reference to an index, formula or other method, the manner
in which such amounts shall be determined and the calculation
agent, if any, with respect thereto;
(11) if other than the currency of the United
States of America, the currency, currencies, or currency units in
which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 1.02;
(12) if the principal of or any premium or interest
on any Securities of the series is to be payable, at the election
of the Company or the Holder thereof, in one or more currencies
or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or
currency units in which the principal of or any premium or
interest on such Securities as to which such election is made
shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount
so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount
thereof, the portion of the principal amount of any Securities of
the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.02;
(14) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be
determined);
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(15) if applicable, that the Securities of the
series, in whole or any specified part, shall not be defeasible
pursuant to Section 13.02 or Section 13.03 or both such Sections
and, if other than by a Company Order, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the
series shall be issuable in whole or in part in the form of one
or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 2.04 and any
circumstances in addition to or in lieu of those set forth in
Section 3.05 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(17) any addition to or change in the Events of
Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due and
payable pursuant to Section 5.02;
(18) if other than as defined in Section 1.01, the
meaning of "Business Day" when used with respect to any
Securities of the series;
(19) if the Securities of the series may be issued
or delivered (whether upon original issuance or upon exchange of
a temporary Security of such series or otherwise), or any
installment of principal of or any interest is payable, only upon
receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified
in this Indenture, the form and terms of such certificates,
documents or conditions;
(20) the terms of any right to convert Securities
of the series into shares of Common Stock of the Company or other
securities or property;
(21) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the series;
and
(22) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.01(5)).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided in or pursuant to an Officers' Certificate pursuant to
this Section 3.01 or in any indenture supplemental hereto; provided, however,
that a different CUSIP number shall be obtained for Securities of any one series
that are not identical (except as to denomination). All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities of
a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate or supplemental indenture may provide general terms for Securities
of such series and provide either that the specific terms of particular
Securities of such series shall be specified in a Company Order or that such
terms shall be determined by the Company, or one or more of the Company's agents
designated in an Officers' Certificate, in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
3.03.
SECTION 3.02. DENOMINATIONS.
Unless otherwise provided in the applicable Officers' Certificate
or supplemental indenture, the Securities of each series shall be issuable only
in registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 3.01. In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents, or the Treasurer or any Assistant Treasurer, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities; provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, (1) such Company Order may be delivered by the
Company to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (2) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (3) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if any,
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (4) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent
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or agents designated in an Officers' Certificate, which oral instructions shall
be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(1) that the form and terms of such Securities have been
duly authorized by the Company and established in conformity with the
provisions of this Indenture; and
(2) that such Securities when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
condition specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the
terms of such Securities (when established in accordance with such
procedures as may be specified from time to time in a Company Order all as
contemplated by and in accordance with a Board Resolution or an Officers'
Certificate pursuant to Section 3.01, as the case may be) will have been,
duly authorized by the Company and established in conformity with the
provisions of this Indenture; and
(y) that such Securities when (i) executed by the Company,
(ii) completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and (iii) issued and delivered by the Company and
paid for in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 2.01 and 3.01 and this
Section , as applicable, at or prior to the time of the first authentication of
Securities of such series unless and until it has received written notification
that such opinion or other documents have been superseded or revoked. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do not
violate any rules,
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regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and opinion of
counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication, upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an Authenticating Agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in substantially
the form set forth in Section 2.05.
Notwithstanding the foregoing, if any Security shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.03 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.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more
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temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 10.02 for
such purpose in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series of any authorized denomination
or denominations, of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
The Company may but shall not be required (a) to issue, register
the transfer of or exchange Securities of any series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (b)
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to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in
part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Security or
a nominee thereof unless (a) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (b) the Company
executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable, (c) there shall have
occurred and be continuing an Event of Default with respect to
such Global Security or (d) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 3.01.
(3) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made in whole or in
part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section , Section 3.04, 3.06, 9.06, or 11.07 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or
a nominee thereof.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or
(b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount, bearing a number not
contemporaneously Outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Securities under this Section , the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Security 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 any such new Security shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities of that
issue.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall
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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 at his or her 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 (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section , each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the provisions of Section 14.02, in the case of any
Security (or any part thereof) which is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any
Security the principal of (or premium, if any, on) which shall become due and
payable, whether at Stated Maturity or by declaration of acceleration prior to
such Interest Payment Dated), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence or in Section 14.02, in the case of any Security (or any part thereof)
which is converted, interest whose Stated Maturity is after the date of
conversion of such Security or such part thereof shall not be payable.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and (except
as otherwise specified as contemplated by Section 3.01 and subject to Section
3.05 and Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security held
on its behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever.
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Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interest, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominees) as
Holder of any Security.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment, shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and all Registered Securities so delivered shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever (including Securities received by the Company
in exchange or payment for other Securities of the Company) 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. The Company may not reissue, or issue new
Securities to replace, Securities it has paid for or delivered to the Trustee
for cancellation. 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 held by the Trustee shall
be destroyed by the Trustee and evidence of their destruction delivered to the
Company unless the Company directs by Company Order that the Trustee deliver
canceled Securities to the Company.
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of any series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
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(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee, as trust
funds in trust for the purpose, money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (b) of
Clause (1) of this Section , the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) Default in the payment of any interest upon any
Security of that series when it becomes due and payable, and continuance
of such Default for a period of 30 days;
(2) Default in the payment of principal of or any premium
on any Security of that series at its Maturity;
(3) Default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and continuance
of such Default for a period of 30 days;
(4) Default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a Default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of Securities other than that
series), and continuance of such Default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities
of that series a written notice specifying such Default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(5) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law, or a decree
or order approving as properly filed a petition seeking reorganization of
the Company under any bankruptcy law, and such decree or order
undischarged and unstayed for a period of 90 days, or a decree or order of
a court for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Company or of its property, or
for the winding-up or liquidation of its affairs, and such decree or order
undischarged and unstayed for a period of 90 days;
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to
be adjudged a bankrupt or insolvent, or the consent by it to the filing of
a bankruptcy proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization under any bankruptcy law, or its
consent to the filing of any such petition, or its consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or its assignment for
the benefit of creditors, or its admission in writing of its inability to
pay its debts generally as they become due; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series
at the time Outstanding (other than an Event of Default specified in Section
5.01(5) or (6)) occurs
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and is continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of that
series by notice to the Company and the Trustee, may declare the principal
amount of (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) all the Securities of that series to be
immediately due and payable. Upon such a declaration, such principal (or portion
thereof) shall be due and payable immediately. If an Event of Default specified
in Section 5.01(5) or (6) occurs and is continuing, the principal amount (or
portion thereof) of all the Securities of that series shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders.
At any time after such a declaration of acceleration with respect
to Outstanding Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(a) all overdue interest on all Securities
of that series,
(b) the principal of (and premium, if any,
on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor
in such Securities,
(c) to the extent that payment of such
interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon.
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SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) Default is made in the payment of any interest
on any Security when such interest becomes due and payable and
such Default continues for a period of 30 days, or
(2) Default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal and any premium and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such right, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities, or the property of the Company or of such other obligor or their
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
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SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.07; and
Second:To the payment of the amounts than due and unpaid for
principal of any premium and interest on the Securities in respect of which or
for the benefit of which such money had been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, and any premium and interest, respectively.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period
by the Holders of a
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majority in aggregate principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, the right,
which is absolute and unconditional, of any Holder of any Security to receive
payment of the principal of and (subject to Section 3.07) interest on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) held by such Holder, on or after
the respective due dates expressed in the Securities or any Redemption Date, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected adversely without the
consent of each such Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
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SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series that would be affected by
such a default (voting as one class) may, on behalf of the Holders of all the
Securities of such series, waive any past Default hereunder with respect to such
series and its consequences, except a Default:
(1) in the payment of the principal of or any
premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' 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 5.14 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 5.07 or a suit by Holders of more than l0%
in aggregate principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security for the enforcement of the
payment of the principal of or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not there is expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section .
SECTION 6.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any Default of the character
specified in Section 5.01(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
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SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
SECTION 6.08. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section , it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee
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within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section
6.08 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (a) the Company by a Company Order may remove the
Trustee with respect to all Securities, or (b) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Company
Order, shall promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
1.07. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
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
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
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No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merger or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee, with the concurrence of the Company, may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue, and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal, State or District of Columbia authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section , the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at anytime 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 .
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Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section , without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section , the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.07 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section .
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section , and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section , the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
As Trustee
By:_______________________________________
As Authenticating Agent
By:_______________________________________
As Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
If the Trustee is not acting as Security Registrar for the
Securities of any series, the Company will furnish or cause to be furnished to
the Trustee:
(1) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of each series as of the preceding
January 1 or July 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or
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reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) either (a) the Company shall be the continuing corporation or
(b) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance, transfer
or lease the properties and assets of the Company substantially as an entirety
(i) shall be a corporation, partnership or trust organized and validly existing
under the laws of the United States or any state thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all of the obligations of the Company under the Securities and this
Indenture;
(2) immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company or any
Restricted Subsidiary would become subject to a Lien which would not be
permitted by this Indenture, the Company or such successor Person, as the case
may be, shall take such steps as shall be necessary to secure the Securities
equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
SECTION 8.02. SUCCESSOR SUBSTITUTED.
The successor Person formed by such consolidation or into which
the Company is merged or the successor Person to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor had been named as the Company herein; and thereafter except
in the case of a lease of its properties and assets substantially as an
entirety, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized
by or pursuant to a Company Order, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (a) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (b) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 10.07 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other
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provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (9) shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Company Order, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
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 or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment, on or after
the Redemption Date or any repayment date); or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain Defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section , Section 5.13
or Section 10.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security 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 10.09, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. In the absence of contrary
provisions with respect to the Securities of any series, interest on the
Securities of any series may, at the option of the Company, be paid by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register. An installment of principal of or interest on the Securities
shall be considered paid on the date it is due if the Trustee or a Paying Agent
(other than the Company or an Affiliate of the Company) holds on that date funds
designated for and sufficient to pay such installment.
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SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
As long as any of the Securities of a series remain Outstanding,
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. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail 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 address of the Trustee
set forth in Section 1.06, and the Company hereby appoints the Trustee as its
agent to receive all such notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in 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 of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section , that such Paying Agent will (a) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (b)
during the continuance of any Default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in each Place of
Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, one of the signatures of which shall be that of the
Company's principal executive, financial or accounting officer, stating whether
or not, to the best knowledge of the signers thereof, the Company is in Default
in the performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in Default, specifying
all such Defaults and the nature and status thereof of which they may have
knowledge.
SECTION 10.05. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will or will cause a Restricted Subsidiary to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Restricted Subsidiary or upon the income,
profits or property of the Company or any Restricted Subsidiary, and (b) all
lawful claims for labor, materials and supplies which, if
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unpaid, might by law become a lien upon the property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings or if the Company shall determine that the
failure to pay would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
SECTION 10.07. LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, incur, issue, assume or guarantee debt secured by any Lien upon
any Principal Property, without making, or causing such Restricted Subsidiary to
make, effective provision whereby the Securities then Outstanding and having the
benefit of this Section shall be secured by the Lien equally and ratably with
such debt for so long as such debt shall be so secured, except that the
foregoing shall not prevent the Company or any Restricted Subsidiary from
creating, assuming or suffering to exist any Lien existing at the date of this
Indenture or Liens of the following character:
(1) any Lien existing on any Principal Property
owned or leased by a corporation at the time it becomes a
Restricted Subsidiary;
(2) any Lien existing on Principal Property at the
time of the acquisition thereof by the Company or a Restricted
Subsidiary;
(3) any Lien to secure any debt incurred prior to,
at the time of, or within 12 months after the acquisition of
Principal Property for the purpose of financing all or any part
of the purchase price thereof and any Lien to the extent that it
secures debt which is in excess of such purchase price and for
the payment of which recourse may be had only against such
Principal Property;
(4) any Lien to secure any debt incurred prior to,
at the time of, or within 12 months after the completion of the
construction and commencement of commercial operation,
alteration, repair or improvement of Principal Property for the
purpose of financing all or any part of the cost thereof and any
Lien to the extent that it secures debt which is in excess of
such cost and for the payment of which recourse may be had only
against such Principal Property;
(5) any Lien in favor of the Company or any
Affiliate;
(6) any Lien in favor of the United States of
America or any State thereof or any other country, or any agency,
instrumentality or political subdivision or any of the foregoing,
to secure partial, progress, advance or other payments or
performance pursuant to the provisions of any contract or
statute, or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such Lien;
(7) Liens imposed by law, such as mechanics',
workmen's, repairmen's, materialmen's, carriers', warehousemen's,
vendors' or other similar Liens arising in the ordinary course of
business, or
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governmental (federal, state or municipal) Liens arising out of
contracts for the sale of products or services by the Company or
any Restricted Subsidiary, or deposits or pledges to obtain the
release of any of the foregoing;
(8) pledges or deposits under workmen's
compensation laws or similar legislation and Liens of judgments
thereunder which are not currently dischargeable, or good faith
deposits in connection with bids, tenders, contracts (other than
for the payment of money) or leases to which the Company or any
Restricted Subsidiary is a party, or deposits to secure public or
statutory obligations of the Company or any Restricted
Subsidiary, or deposits in connection with obtaining or
maintaining self-insurance or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance,
old age pensions, social security or similar matters, or deposits
of cash or obligations of the United States of America to secure
surety, appeal or customs bonds to which the Company or any
Restricted Subsidiary is a party, or deposits in litigation or
other proceedings such as, but not limited to, interpleader
proceedings;
(9) Liens created by or resulting from any
litigation or other proceeding which is being contested in good
faith by appropriate proceedings, including Liens arising out of
judgments or awards against the Company or any Restricted
Subsidiary with respect to which the Company or such Restricted
Subsidiary is in good faith prosecuting an appeal or proceedings
for review; or Liens incurred by the Company or any Restricted
Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the
Company or such Restricted Subsidiary is a party;
(10) Liens for taxes or assessments or governmental
charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested
in good faith by appropriate proceedings;
(11) Liens consisting of easements, rights-of-way,
zoning restrictions, restrictions on the use of real property,
and defects and irregularities in the title thereto, landlords'
liens and other similar liens and encumbrances none of which
interfere materially with the use of the property covered thereby
in the ordinary course of the business of the Company or such
Restricted Subsidiary and which do not, in the opinion of the
Company, materially detract from the value of such properties;
(12) Liens securing obligations issued by a State,
territory or possession of the United States, any political
subdivision of any of the foregoing, or the District of Columbia,
or any instrumentality of any of the foregoing to finance the
acquisition or construction of property, and on which the
interest is not, in the opinion of tax counsel or in accordance
with a ruling issued by the Internal Revenue Service, includible
in gross income of the holder by reason of Section 103(a) of the
Internal Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations;
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(13) Liens on or with respect to coal, gas,
hydrocarbon or mineral properties not fully developed securing
debt, the proceeds of which are used to finance or refinance the
development of such properties;
(14) Liens on or with respect to mineral rights
held under option but not owned by the Company or any Restricted
Subsidiary;
(15) Liens on or with respect to ores,
concentrates, metals or other raw materials or products incurred
in the ordinary course of business in connection with the
importation, purchase or sale thereof; and
(16) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in
part, of any Lien referred to in clauses (1) through (15) above,
so long as the principal amount of the debt secured thereby does
not exceed the principal amount of debt so secured at the time of
the extension, renewal or replacement (except that, where an
additional principal amount of debt is incurred to provide funds
for the completion of a specific project, the additional
principal amount, and any related financing costs, may be secured
by the Lien as well) and the Lien is limited to the same property
subject to the Lien so extended, renewed or replaced (plus
improvements on the property).
Notwithstanding the foregoing provisions of this Section 10.07,
the Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee debt secured by a Lien which would otherwise be subject to the
foregoing restrictions if at the time it does so (the "Incurrence Time") the
aggregate amount of such debt plus all other debt of the Company and its
Restricted Subsidiaries secured by a Lien which would otherwise be subject to
the foregoing restrictions (not including debt permitted to be secured under the
foregoing restrictions), plus the aggregate Attributable Debt (determined as of
the Incurrence Time) of Sale and Leaseback Transactions (other than Sale and
Leaseback Transactions permitted by Section 10.08) entered into after the date
hereof and in existence at the Incurrence Time (less the aggregate amount of
proceeds of such Sale and Leaseback Transactions which shall have been applied
in accordance with Section 10.08) does not exceed 15% of Consolidated Net
Tangible Assets.
SECTION 10.08. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not itself, and it will not permit any
Restricted Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor (not including the Company or any Affiliate)
or to which any such lender or investor is a party, providing for the leasing by
the Company or a Restricted Subsidiary for a period, including renewals, in
excess of three years of any Principal Property which has been or is to be sold
or transferred by the Company or any Restricted Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred
to as a "Sale and Leaseback Transaction") unless either:
(1) the Company or such Restricted Subsidiary
would, at the time of entering into such arrangement, be
entitled, without equally and ratably securing the Securities of
each series then Outstanding, to
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incur, issue, assume or guarantee debt secured by a Lien on such
property, pursuant to paragraphs (1) to (16), inclusive, of
Section 10.07; or
(2) the Company, within 180 days after the sale or
transfer shall have been made by the Company or by a Restricted
Subsidiary, applies an amount equal to the greater of (a) the net
proceeds of the sale of the Principal Property sold and leased
back pursuant to such arrangement or (b) the fair market value of
the Principal Property so sold and leased back at the time of
entering into such arrangement (as determined by: the Chairman or
a Vice Chairman of the Board of the Company, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary) to the retirement of Funded
Debt of the Company; provided, that the amount to be applied to
the retirement of Funded Debt of the Company shall be reduced by
(i) the principal amount of any Securities delivered within 120
days after such sale to the Trustee for retirement and
cancellation, and (ii) the principal amount of Funded Debt, other
than Securities, voluntarily retired by the Company within 120
days after such sale.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries, or any of them, may enter into a Sale and Leaseback Transaction
which would otherwise be prohibited by this Section 10.08, provided, that at the
time of such transaction, after giving effect thereto, the sum of (i) the
aggregate amount of the Attributable Debt in respect of all Sale and Leaseback
Transactions existing at such time which could not have been entered into except
for the provisions of this paragraph plus (ii) the aggregate amount of
Outstanding debt secured by liens in reliance on the last paragraph of Section
10.07 does not at such time exceed 15% of the Consolidated Net Tangible Assets
of the Company.
A Sale and Leaseback Transaction shall not be deemed to result in
the creation of a Lien.
SECTION 10.09. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with
any covenant, term or condition with respect to the Securities of any series if
before or after the time for such compliance the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities of all series that
would be affected by such a waiver (voting as one class) shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant 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 covenant or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. 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 3.01 for such Securities) in
accordance with this Article.
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SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Company Order. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at the Holder's address
appearing in the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
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.
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SECTION 11.07. 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 the Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered; provided, however, that
if a Global Security is so surrendered, such new Security so issued shall be a
new Global Security in a denomination equal to the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of the Securities of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a series
with the same issue date, interest rate and Stated Maturity (other than any
previously called for redemption), and (b) may apply as a credit Securities of a
series with the same issue date, interest rate and Stated Maturity 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 mandatory sinking fund payment with respect to the
Securities of such series with the same issue date, interest rate and Stated
Maturity; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 35 days (or such shorter period as shall be
acceptable to the Trustee) prior to each sinking fund payment date for any
series of Securities, the Company
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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 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 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 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. COMPANY'S RIGHT WITH RESPECT TO DEFEASANCE OR COVENANT
DEFEASANCE.
The Company will have the right, at any time, to have Section
13.02 or Section 13.03 applied to any Securities or any series of Securities, as
the case may be (other than Securities of a series designated pursuant to
Section 3.01 as not being defeasible pursuant to Section 13.02 or 13.03), upon
compliance with the conditions set forth below in this Article. Any such request
shall be evidenced by a Company Order or in another manner specified as
contemplated by Section 3.01 for such Securities.
SECTION 13.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its right to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 13.04 and as more fully
set forth in such Section , (i) payments in respect of the principal of and any
premium and interest on the Outstanding Securities on the Stated Maturity of
such principal or installment of principal of and any premium or interest and
(ii) the benefit of any mandatory sinking fund payments applicable to the
Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities, (b) the Company's
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and (d) this Article. Subject to compliance with this
Article, the Company may exercise its option to have this Section applied to any
Securities notwithstanding the prior exercise of its option to have Section
13.03 applied to such securities.
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SECTION 13.03. COVENANT DEFEASANCE.
Upon the Company's exercise of its right to have this Section
applied to any Securities or any series of Securities, as the case may be, (a)
the Company shall be released from its obligations under Section 8.01(3),
Sections 10.06 through 10.08, inclusive, and any covenants provided pursuant to
Section 3.01(21), 9.01(2) or 9.01(7) for the benefit of the Holders of such
Securities and (b) the occurrence of any event specified in Sections 5.01(4)
(with respect to any of Section 8.01(3), Sections 10.06 through 10.08,
inclusive, and any such covenants provided pursuant to Section 3.01(21), 9.01(2)
or 9.01(7)), 5.01(5) and 5.01(6) shall be deemed not to be or result in an Event
of Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 13.04 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 5.01(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
Section 13.02 or Section 13.03 to any Securities or any series of Securities, as
the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfied the requirements
contemplated by Section 6.09 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (a) money in an amount, or
(b) U.S. Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(c) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the terms of
this Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
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(2) In the event of an election to have Section 13.02 apply to
any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (b) since the date of this instrument, there has been a
change in the applicable Federal income tax law, in either case (a) or (b) to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal income tax on the
same amount in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to
any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4) Such provision would not cause any Outstanding Securities if
then listed on any securities exchange, to be delisted as a result of such
deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.01(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a Default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 10.03,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.06, the Trustee and
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any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 13.04 in respect of any Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 13.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
SECTION 14.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock of
the Company, and the issuance of such shares of Common Stock upon the conversion
of such Securities, except as otherwise specified as contemplated by Section
3.01 for the Securities of such series.
SECTION 14.02. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise a conversion privilege, the Holder of a
Security of a series with such a privilege shall surrender such Security to the
Company at the office or agency
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maintained for that purpose pursuant to Section 10.02, accompanied by a duly
executed conversion notice to the Company substantially in the form set forth in
Section 2.06 stating that the Holder elects to convert such Security or a
specified portion thereof. Such notice shall also state, if different from the
name and address of such Holder, the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued. Securities surrendered for conversion shall
(if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion (in whole or
in part) during the period from the close of business on any Regular Record Date
to the opening of business on the next succeeding Interest Payment Date
(excluding Securities or portions thereof called for redemption during such
period) shall also be accompanied by payment in funds acceptable to the Company
of any amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Security then being converted, and such interest shall
be payable to such registered Holder notwithstanding the conversion of such
Security, subject to the provisions of Section 3.07 relating to the payment of
Defaulted Interest by the Company. As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution and,
subject to Section 3.03, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto setting forth the terms of such series of Security, and the surrender of
such Security in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at
which such Security is surrendered, to such holder or on its written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof), in
accordance with the provisions of such Board Resolution, Officers' Certificate
or supplemental indenture, and cash as provided therein in respect of any
fractional share of such Common Stock otherwise issuable upon such conversion.
Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion by
the Company and such Security shall have been surrendered as aforesaid (unless
such Holder shall have so surrendered such Security and shall have instructed
the Company to effect the conversion on a particular date following such
surrender and such Holder shall be entitled to convert such Security on such
date, in which case such conversion shall be deemed to be effected immediately
prior to the close of business on such date) and at such time the rights of the
Holder of such Security as such Security Holder shall cease and the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock of the Company shall be issuable upon such conversion shall be
deemed to have become the Holder or Holders of record of the shares represented
thereby. Except as set forth above and subject to the final paragraph of Section
3.07, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the Securities (or any part thereof) surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Company,
a new Security or Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unconverted portion of such Security.
65
<PAGE> 72
SECTION 14.03. NO FRACTIONAL SHARES.
No fractional share of Common Stock of the Company shall be
issued upon conversions of Securities of any series. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the
provisions of this Section 14.03, any Holder of a Security or Securities would
be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portion thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is listed or
admitted to unlisted trading privileges on a national securities exchange on the
last trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so listed or
admitted to unlisted trading privileges on a national securities exchange, on
the basis of the average of the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the fair market price as
determined by the Board of Directors. For purposes of this Section , "trading
day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than
any day on which the Common Stock is not traded on the New York Stock Exchange,
or if the Common Stock is not traded on the new York Stock Exchange, on the
principal exchange or market on which the Common Stock is traded or quoted.
SECTION 14.04. ADJUSTMENT OF CONVERSION PRICE.
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassifications, combinations or similar transactions
in accordance with the terms of the supplemental indenture or Board Resolution
setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the applicable
Board Resolution or supplemental indenture and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.02 and, if different,
with the Trustee. The Company shall forthwith cause a notice setting forth the
adjusted conversion price to be mailed, first class postage prepaid, to each
Holder of Securities of such series at its address appearing on the Security
Register and to any conversion agent other than the Trustee.
SECTION 14.05. NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings (other than a dividend for which approval of any shareholders
of the Company is required); or
66
<PAGE> 73
(2) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights (other than any such
grant for which approval of any shareholders of the Company is required); or
(3) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of Common
Stock, or of any consolidation, merger or share exchange to which the Company is
a party and for which approval of any shareholders of the Company is required),
or of the sale of all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in Clause
(1) or (2) above) prior to the applicable record date hereinafter specified, a
notice stating (i) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
SECTION 14.06. RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock of the Company then issuable upon the conversion of all Outstanding
Securities of any series that has conversion rights.
SECTION 14.07. PAYMENT OF CERTAIN TAXES UPON CONVERSION.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
67
<PAGE> 74
SECTION 14.08. NONASSESSABILITY.
The Company covenants that all shares of its Common Stock which
may be issued upon conversion of Securities will upon issue in accordance with
the terms hereof be duly and validly issued and full paid and nonassessable.
SECTION 14.09. EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE.
In case of any consolidation of the Company with, or merger of
the Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person formed
by such consolidation or the Person into which the Company shall have been
merged or the Person which shall have acquired such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then Outstanding of any series that is convertible
into Common Stock of the Company shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of shares of Common Stock of the Company into which such Security
might have been converted immediately prior to such consolidation, merger or
sale, subject to compliance with the other provisions of this Indenture, such
Security and such supplemental indenture. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company do not receive shares of common stock of the surviving corporation but
receive other securities, cash or other property or any combination thereof,
Holders of Securities shall not have the right to thereafter convert their
Securities into common stock of the surviving corporation or the corporation
which shall have acquired such assets, but rather, shall have the right upon
such conversion to receive the other securities, cash or other property
receivable by a holder of the number of shares of Common Stock of the Company
into which the Securities held by such holder might have been converted
immediately prior to such consolidation, merger or sale, all as more fully
provided in the first sentence of this Section 14.09. Anything in this Section
14.09 to the contrary notwithstanding, the provisions of this Section 14.09
shall not apply to a merger or consolidation of another corporation with or into
the Company pursuant to which both of the following conditions are applicable:
(i) the Company is the surviving corporation and (ii) the outstanding shares of
Common Stock of the Company are not changed or converted into any other
securities or property (including cash) or changed in number or character or
reclassified pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
68
<PAGE> 75
SECTION 14.10. DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company provided to be employed in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock of the
Company, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Securities and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Subject to the
provisions of Section 6.01, neither the Trustee nor any conversion agent shall
be responsible for any failure of the Company to issue, transfer or deliver any
shares of its Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion or to comply
with any of the covenants of the company contained in this Article Fourteen or
in the applicable supplemental indenture, resolutions of the Board of Directors
or written instrument executed by one or more duly authorized officers of the
Company.
SECTION 14.11. REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other payment agent for the
purpose of paying the principal of, and premium, if any, and interest, if any,
on any of the Securities (including funds deposited for the sinking fund
referred to in Article Twelve hereof) and which shall not be required for such
purposes because of the conversion of such Securities as provided in this
Article Fourteen shall after such conversion be repaid to the Company by the
Trustee upon the Company's written request.
69
<PAGE> 76
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Indenture as of the day and year first above written.
FLUOR CORPORATION
By:_________________________________
Stephen F. Hull
Vice President and Treasurer
Attest:
_________________________________
BANKERS TRUST COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
_________________________________
70
<PAGE> 1
EXHIBIT 5
GIBSON, DUNN & CRUTCHER LLP
LAWYERS
JAMBOREE CENTER
4 PARK PLAZA
IRVINE, CALIFORNIA 92614-8557
(714) 451-3800
December 19, 1996
(714) 451-3800 C 29019-00856
Fluor Corporation
3353 Michelson Drive
Irvine, CA 92698
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel for Fluor Corporation, a Delaware corporation
(the "Company"), in connection with the registration and issuance of up to
$400,000,000 in aggregate initial offering price of senior debt securities (the
"Debt Securities") to be issued pursuant to an indenture (the "Indenture") to
be entered into between the Company and Bankers Trust Company, as trustee (the
"Trustee").
We have examined the Registration Statement on Form S-3 (the
"Registration Statement") with respect to the Debt Securities and such other
documents, records and matters of law as we have deemed necessary for the
purposes of our opinions. In connection with our examination of such
documents, we have assumed the genuiness of all signatures on, and the
authenticity of, all documents submitted to us as originals and the conformity
to the original documents of all documents submitted to us as copies. With
respect to agreements and instruments executed by natural persons, we have
assumed the legal competency and authority of such persons. As to facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of the Company.
<PAGE> 2
Fluor Corporation
December 19, 1996
Page 2
Based upon the foregoing, in reliance thereon and subject to the
assumptions and qualifications set forth herein, it is our opinion that:
1. The Indenture has been duly authorized and, when executed and
delivered by the Company and assuming due authorization, execution and delivery
by the Trustee, will be a valid and binding agreement enforceable against the
Company in accordance with its terms.
2. With respect to any series of Debt Securities (the "Offered Debt
Securities"), assuming that (i) the Distribution Agreement to be entered into
between the Company and certain agents (the "Distribution Agreement") has been
duly authorized, executed and delivered by the Company and the other parties
thereto, (ii) the Company's Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the Company have taken
all necessary corporate action to approve the issuance and terms of the Offered
Debt Securities and related matters, (iii) the terms of the Offered Debt
Securities and of their issuance and sale have been duly established in
conformity with the Indenture so as not to violate any applicable law, the
Certificate of Incorporation or Bylaws of the Company or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, (iv) the Indenture has
been duly executed and delivered by the Company and the Trustee, and (v) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the provisions of the Indenture and duly delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor, the Offered
Debt Securities, when issued and sold in accordance with the Indenture and the
Distribution Agreement will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
Our opinions are limited by (a) the effect of applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws and court
decisions of general application, including without limitation, statutory or
other laws regarding fraudulent or preferential transfers relating to, limiting
or affecting the enforcement of creditors' rights generally and (b) the effect
of general principles of equity upon the availability of specific performance
and injunctive relief or other equitable remedies and (c) the application of
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to, limit or affect
the enforcement of creditors' rights generally. We express no opinion as to
the legality, validity, binding effect or enforceability of any provision in
any agreement regarding rights of indemnification or contribution, which may be
limited by federal or state securities law.
Our opinions do not address or include (a) state securities or blue
sky laws or regulations of the various jurisdictions in which the Debt
Securities are to be offered, or (b) the accuracy, completeness, fairness or
adequacy of the disclosure contained in the Registration Statement under the
securities or other laws and regulations of the United States or any state or
other jurisdiction.
<PAGE> 3
Fluor Corporation
December 19, 1996
Page 3
We express no opinion as to matters involving the laws of any
jurisdiction other than the States of California and Delaware and the United
States of America. We are not admitted to practice law in the State of
Delaware, but we are generally familiar with the Delaware General Corporation
Law as presently in effect and have made such inquiries as we considered
necessary to render our opinion. The opinions set forth in this letter are
limited to the present laws of the State of California, the present federal
laws of the United States, and, to the limited extent set forth above, the
present laws of the State of Delaware. No opinion is expressed by us as to
matters of conflict or choice of law. We undertake no obligation to advise you
as a result of developments occurring after the date hereof or as a result of
facts or circumstances brought to our attention after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Registration Statement and in the Prospectuses
which form a part thereof. In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher
---------------------------------------
GIBSON, DUNN & CRUTCHER LLP
EMG/JMW/GCT
<PAGE> 1
EXHIBIT 12
FLUOR CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Nine
Months
Ended
July 31, Year Ended October 31,
-------- ------------------------------------------------------------------------
1996 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Income from continuing
operations before
income taxes............... $291,711 $362,214 $303,299 $242,200 $215,350 $228,401
Add (subtract)
Undistributed income from
less than 50% owned
persons.................. (3,793) (163) (6,000) -- -- --
Fixed charges.............. 30,925 35,597 36,872 43,144 50,247 47,133
-------- -------- -------- -------- -------- --------
Total...................... $318,843 $397,648 $334,171 $285,344 $265,597 $275,534
======== ======== ======== ======== ======== ========
Fixed charges
Interest expense........... $ 11,416 $ 13,385 $ 16,861 $ 19,982 $ 23,580 $ 16,466
Portion of rents
representative of
interest factor.......... 19,509 22,212 20,011 23,162 26,667 30,667
-------- -------- -------- -------- -------- --------
Total fixed charges........ $ 30,925 $ 35,597 $ 36,872 $ 43,144 $ 50,247 $ 47,133
======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges............ 10.31 11.17 9.06 6.61 5.29 5.85
======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Fluor Corporation
for the registration of $400,000,000 principal amount of Senior Debt Securities
and to the incorporation by reference therein of our report dated November 28,
1995, with respect to the consolidated financial statements of Fluor Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
October 31, 1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
--------------------------------------
ERNST & YOUNG LLP
Orange County, California
December 19, 1996
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of
Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and appoint
Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of them,
his true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-3 and any and all
amendments thereto (including post-effective amendments) to be filed by Fluor
with the Securities and Exchange Commission (the "Commission") for the purpose
of registering under the Securities Act of 1933, as amended, up to $400,000,000
of senior debt securities of Fluor covered by said Registration Statement and to
file such Registration Statement and any and all such amendments and any and all
exhibits thereto, and any and all other information and documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
each acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming as his own act and deed all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed his
signature as of the 11th day of December, 1996.
/s/ Leslie G. McCraw
------------------------------
Leslie G. McCraw
1
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of
Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and appoint
Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of them,
his true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-3 and any and all
amendments thereto (including post-effective amendments) to be filed by Fluor
with the Securities and Exchange Commission (the "Commission") for the purpose
of registering under the Securities Act of 1933, as amended, up to $400,000,000
of senior debt securities of Fluor covered by said Registration Statement and to
file such Registration Statement and any and all such amendments and any and all
exhibits thereto, and any and all other information and documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents,
each acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming as his own act and deed all that such attorneys-in-fact
and agents, and each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed his
signature as of the 11th day of December, 1996.
/s/ J. Michal Conaway
------------------------------
J. Michal Conaway
2
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Carroll A. Campbell, Jr.
----------------------------------------
Carroll A. Campbell, Jr.
1
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Hugh K. Coble
-----------------------------------------
Hugh K. Coble
2
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Peter J. Fluor
-----------------------------------------
Peter J. Fluor
3
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ David P. Gardner
-----------------------------------------
David P. Gardner
4
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ William R. Grant
-----------------------------------------
William R. Grant
5
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Bobby R. Inman
-----------------------------------------
Bobby R. Inman
6
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Robert V. Lindsay
-----------------------------------------
Robert V. Lindsay
7
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Vilma S. Martinez
-----------------------------------------
Vilma S. Martinez
8
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Buck Mickel
-----------------------------------------
Buck Mickel
9
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Martha R. Seger
-----------------------------------------
Martha R. Seger
10
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
of Fluor Corporation, a Delaware corporation ("Fluor"), does constitute and
appoint Lawrence N. Fisher, Robert R. Dryden and Raymond M. Bukaty, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-3 and any and
all amendments thereto (including post-effective amendments) to be filed by
Fluor with the Securities and Exchange Commission (the "Commission") for the
purpose of registering under the Securities Act of 1933, as amended, up to
$400,000,000 of senior debt securities of Fluor covered by said Registration
Statement and to file such Registration Statement and any and all such
amendments and any and all exhibits thereto, and any and all other information
and documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming as his own act and deed all
that such attorneys-in-fact and agents, and each of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his signature as of the 11th day of December, 1996.
/s/ Donald L. Blankenship
-----------------------------------------
Donald L. Blankenship
11
<PAGE> 1
Exhibit 25
-----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
FLUOR CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 95-0740960
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
3353 MICHELSON DRIVE
IRVINE, CALIFORNIA 92698
(Address of principal executive offices) (Zip Code)
$400,000,000 SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995
Incorporated herein by reference to Exhibit 1
filed with Form T-1 Statement, Registration No.
33-65171, and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated March 20, 1996, copy attached.
EXHIBIT 2 - Certificate of Authority to commence business
- Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No.
33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise
corporate trust powers Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as
amended on September 17, 1996 - Incorporated
herein by reference to Exhibit 4 filed with Form
T-1 Statement, Registration No. 333-15263.
<PAGE> 3
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
EXHIBIT 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of September 30,
1996.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 10th day
of December, 1996.
BANKERS TRUST COMPANY
By: /s/ Jenna Kaufman
-------------------------------
Jenna Kaufman
Vice President
<PAGE> 5
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Vendor ID: D CERT: 00623 Page RC-1
11
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
| C400 |
<S> <C> <C>
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
ASSETS | / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / /|
a. Noninterest-bearing balances and currency and coin(1) .............................. | 0081 809,000 |1.a.
b. Interest-bearing balances(2) ....................................................... | 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ......................... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................ | 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell in domestic offices | / / / / / / / / / / |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / |
a. Federal funds sold ................................................................. | 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell .................................... | 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 27,239,000 | / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses...................RCFD 3123 917,000 | / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve ......................RCFD 3128 0 | / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ................................. | 2125 26,322,000 |4.d.
5. Assets held in trading accounts .......................................................... | 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) ................................. | 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) ............................................. | 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M).. | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding ............................. | 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) ................................................... | 2143 18,000 |10.
11. Other assets (from Schedule RC-F) ........................................................ | 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) ................................................. | 2170 89,432,000 |12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 6
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State, Zip: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Vendor ID: D CERT: 00623 Page RC-2
12
<TABLE>
<CAPTION>
SCHEDULE RC--CONTINUED
<S> <C> <C>
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
- --------------------------------------------------------------------------------------------------------------------------------
LIABILITIES | / / / / / // / / / / |
13. Deposits: | / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) .............................RCON 6631 2,734,000.......... | / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ...................................RCON 6636 6,657,000.......... | / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / |
part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ...............................RCFN 6631 654,000 | / / / / / / / / / / |13.b.(1)
(2) Interest-bearing ..................................RCFN 6636 22,731,000 | / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in | / / / / / / / / / / |
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / |
a. Federal funds purchased .......................................................... | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase ................................... | RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury ......................................... | RCON 2840 0 |15.a.
b. Trading liabilities .............................................................. | RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / |
a. With original maturity of one year or less ....................................... | RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year ..................................... | RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under capitalized leases .......................... | RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and outstanding ................................ | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures ....................................................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) .................................................. | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) .......................................... | RCFD 2948 84,772,000 |21.
| / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ........................................ | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / |
23. Perpetual preferred stock and related surplus ........................................... | RCFD 3838 500,000 |23.
24. Common stock ............................................................................ | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................................ | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ........................................... | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ........... | RCFD 8434 (16,000) |26.b.
27. Cumulative foreign currency translation adjustments ..................................... | RCFD 3284 (370,000) |27.
28. Total equity capital (sum of items 23 through 27) ....................................... | RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, | / / / / / / / / / / |
and 28) ............................................................................... | RCFD 3300 89,432,000 |29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during
1995 ..........................................................
Number
|RCFD 6724 N/A | M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 7
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated March 20, 1996, providing for an increase in
authorized capital stock from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock and 500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$1,501,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of
New York,
this 21ST day of MARCH in the Year of our Lord one thousand
------- --------
nine hundred and NINETY-SIX.
/s/ Peter M. Philbin
------------------------------
Deputy Superintendent of Banks
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Three Hundred Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (85,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock.
is hereby amended to read as follows:
III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided into
One Hundred Million, One Hundred Sixty Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock.
<PAGE> 9
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
20th day of March, 1996.
/s/ James T. Byrne, Jr.
--------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
--------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
--------------------------
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
/s/ Sandra L. West
- -----------------------
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
