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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) March 4, 1997
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FLUOR CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Delaware 1-7775 95-0740960
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
3353 Michelson Drive, Irvine, California 92698
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (714) 975-2000
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On December 20, 1996, Fluor Corporation (the "Company") filed a
Registration Statement on Form S-3 (No. 333-18315), as amended by Amendment No.
1 filed on February 14, 1997, relating to the registration under the Securities
Act of 1933, as amended (the "Securities Act"), of up to an aggregate principal
amount of $400 million of debt securities, which Registration Statement was
declared effective on February 18, 1997.
On March 4, 1997, the Company entered into an Underwriting Agreement and a
Pricing Agreement (a copy of which is attached hereto as Exhibit 1.2) with
Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Salomon Brothers Inc (collectively, the "Underwriters"), pursuant to which the
Company agreed to issue and sell and the Underwriters agreed, severally and not
jointly, subject to certain conditions, to purchase $300 million aggregate
principal amount of the Company's 6.95% Notes due March 1, 2007 (the "Notes") at
an initial public offering price of 99.551% less underwriting discounts and
commissions.
The issuance and sale of the Notes were completed on March 7, 1997. The
Notes were issued pursuant to an Indenture dated as of February 18, 1997 between
the Company and Bankers Trust Company, as trustee (a copy of which is attached
hereto as Exhibit 4.1).
In connection with the issuance of the Notes under the Indenture, the
Company delivered an Officer's Certificate dated March 7, 1997 (a copy of which
is attached hereto as Exhibit 4.2) setting forth the terms of the Notes and
certifying the resolutions duly adopted by the Board of Directors of the Company
and the Executive Committee of the Board of Directors as of December 11, 1996
and March 4, 1997, respectively.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.2 Underwriting Agreement, dated March 4, 1997, among the Company and
Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Brothers Inc.
4.1 Indenture, dated as of February 18, 1997, between the Company and
Bankers Trust Company, as Trustee.
4.2 Officer's Certificate, dated March 7, 1997, setting forth the terms of
the Notes and attaching the specimen form of Note.
5 Opinion of Gibson, Dunn & Crutcher, LLP regarding the legality of the
Notes.
23 Consent of Gibson, Dunn & Crutcher, LLP (included in Exhibit 5
hereto).
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 7, 1997 FLUOR CORPORATION
By: /s/ LAWRENCE N. FISHER
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Name: Lawrence N. Fisher
Its: Senior Vice President -- Law
and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------- ----------- -------------
<S> <C>
1.2 Underwriting Agreement, dated March 4, 1997, among the
Company and Goldman, Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Brothers Inc.
4.1 Indenture, dated as of February 18, 1997, between the
Company and Bankers Trust Company, as Trustee.
4.2 Officer's Certificate, dated March 7, 1997, setting forth
the terms of the Notes and attaching the specimen form of
Note.
5 Opinion of Gibson, Dunn & Crutcher, LLP regarding the
legality of the Notes.
23 Consent of Gibson, Dunn & Crutcher, LLP (included in
Exhibit 5 hereto).
</TABLE>
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EXHIBIT 1.2
FLUOR CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
March 4, 1997
GOLDMAN, SACHS & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
C/O GOLDMAN, SACHS & CO.,
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071
Ladies and Gentlemen:
From time to time Fluor Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who
act without any firm being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any
of the Securities and the obligation of any of the Underwriters to purchase any
of the Securities shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing Agreement shall
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specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-18315)
(the "Initial Registration Statement")in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Act, each in the
form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
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 or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus 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, being 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
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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 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 by reference
in such Preliminary Prospectus or Prospectus, as the case may be; 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 Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial 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 the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(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 further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform 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 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 an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such 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 an Underwriter of Designated Securities through the
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Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has
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, accrued postretirement benefits or long-term debt of
the Company or any of its subsidiaries 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, otherwise than as set forth or contemplated in the
Prospectus; the Company and its subsidiaries have no material
contingent obligations which are not disclosed 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
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(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, and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities 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, at the Time of Delivery for such Designated Securities (as
defined in Section 4 hereof), the Indenture will constitute 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 Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) 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 Pricing 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
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existing terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, except for such conflicts, breaches, violations or defaults
that individually or in the aggregate would not result in a material
adverse change to the financial position or results of operations of
the Company and its subsidiaries taken as a whole, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or 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 properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, 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 purchase and
distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the
captions "Description of the Debt Securities" and "Description of the
Offered Notes", insofar as they purport to constitute a summary of the
terms of the Securities, and under the captions "Plan of Distribution"
and "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are in all material
respects accurate, complete and fair;
(j) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(k) 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, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(l) Each of the Company and its subsidiaries owns, or
possesses adequate rights to use, all trademarks, service marks, trade
names, trade secrets and copyrights necessary for the conduct of its
respective business as currently conducted by it; to the knowledge of
the Company, none of the activities engaged in by the Company or any
of its subsidiaries infringes or conflicts with rights of others;
(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an
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"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(n) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(o) To the knowledge of the Company, Ernst & Young LLP, who
have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by certified
or official bank check or checks, payable to the order of the Company in the
funds specified in such Pricing Agreement, all in the manner and at the place
and time and date specified in such Pricing Agreement or at such other place
and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the
Time of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; 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 such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been
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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 such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities 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 the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(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 earnings statement of the Company and its
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); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to
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offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after such
Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
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 and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all
reasonable expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with any Indenture
and the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule
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424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by
10:00 p.m., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions (a draft of each such opinion
is attached as Annex III(a) hereto), dated the Time of Delivery for
such Designated Securities, with respect to the matters covered in
paragraphs (i), (ii), (iii), (iv), (v), (viii), (ix), (x), and (xi) of
subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Outside counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion (a draft of such opinion is attached as Annex III(b)
hereto), dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, 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;
(iii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(iv) The Designated Securities have been duly
authorized, and when executed and authenticated in accordance
with the terms of the Indenture and issued and delivered to and
paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the
Indenture, 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 Designated Securities and the
Indenture conform in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented;
(v) 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 instrument of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting
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<PAGE> 10
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vi) The issue and sale of the Designated Securities and
the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities and
the consummation by the Company of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the existing terms or provisions
of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument filed
as an exhibit to the Company's annual report on Form 10-K for
the fiscal year ended October 31, 1996, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any existing statute
or any existing order, rule or regulation (other than foreign
and state securities laws, as to which such counsel expresses no
opinion, and other than federal securities laws, as to which
such counsel expresses no opinion except as otherwise set forth
herein) known to such counsel of any United States federal or
state court or governmental agency or body having jurisdiction
over the Company or any of its properties;
(vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required to be obtained by the
Company for the issue and sale of the Designated Securities to
the Underwriters or the consummation by the Company of the
transactions to be performed by the Company contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(viii) The statements set forth in the Prospectus under
the captions "Description of the Debt Securities" and
"Description of the Offered Notes", insofar as they purport to
constitute a summary of the terms of the Designated Securities,
and under the caption "Plan of Distribution", insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are correct in all material respects;
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act;
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the
Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and
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<PAGE> 11
(xi) Counsel has participated in the preparation of the
Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company,
representatives of the independent auditors of the Company and
the Representatives at which the contents of the Registration
Statement and Prospectus and related matters were discussed.
Because the purpose of counsel's professional engagement was not
to establish or confirm factual matters and because the scope of
their examination of the affairs of the Company did not permit
them to verify the accuracy, completeness or fairness of the
statements set forth in the Registration Statement or
Prospectus, they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or
Prospectus. However, on the basis of the foregoing, except for
the financial statements and schedules and other financial data
included therein, as to which counsel expresses no opinion or
belief, (a) counsel is of the opinion that the Registration
Statement at the time it became effective, and the Prospectus as
of the date thereof and as of the date of such opinion, appeared
on their face to be appropriately responsive in all material
respects to the relevant requirements of the Act and the General
Rules and Regulations promulgated thereunder and (b) no facts
have come to counsel's attention that lead counsel to believe
that the Registration Statement at the time it became effective
contained an untrue statement of a material fact or omits or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
the Prospectus as of its date and as of the date of such opinion
contained or contains 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, in the light of the
circumstances under which they were made, not misleading; and
they do 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 or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) Lawrence N. Fisher, Senior Vice President, Law and
Corporate Secretary of the Company, shall have furnished to the
Representatives his written opinion (a draft of such opinion is
attached as Annex III(c) hereto), dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) 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;
(ii) 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, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the
11
<PAGE> 12
aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken
as a whole; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and
(iii) Neither the Company nor any of its subsidiaries is
in violation of its By-laws or Certificate of Incorporation or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it
or any of its properties may be bound;
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company 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 the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as
Annex II(a) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities 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, which loss or interference is material to the
financial position or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities there shall not have been any
change in the capital stock (other than pursuant to the exercise of
existing options) or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to
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<PAGE> 13
proceed with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock
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, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities 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 suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York or
California State authorities; or (iv) the 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 (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on
the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Securities;
(i) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request; and
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and 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 each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any
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<PAGE> 14
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, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and 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 any
Underwriter of Designated Securities through the Representatives expressly for
use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, 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, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and 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, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and 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 Underwriter through the
Representatives 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 the written consent of 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
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<PAGE> 15
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 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of 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 the
Underwriters of the Designated Securities on the other from the offering of the
Designated 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 the Underwriters of the Designated Securities 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 such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or such Underwriters 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 the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above 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), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
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<PAGE> 16
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement and the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount
16
<PAGE> 17
of the Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
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 Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement: Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors
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<PAGE> 18
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing 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 deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
Fluor Corporation
By: /s/ Stephen F. Hull
--------------------------------------
Name: Stephen F. Hull
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Brothers Inc
By: /s/ Goldman, Sachs & Co.
-----------------------------------
(Goldman, Sachs & Co.)
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<PAGE> 19
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc
c/o Goldman, Sachs & Co.,
333 South Grand Avenue
Los Angeles, California 90071
MARCH 4, 1997
Ladies and Gentlemen:
Fluor Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March 4, 1997 (the "Underwriting Agreement"), between the
Company on the one hand and Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Salomon Brothers Inc on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 20
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Fluor Corporation
By: /s/ Stephen F. Hull
----------------------------------
Name: Stephen F. Hull
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Brothers Inc
By: /s/ Goldman, Sachs & Co.
---------------------------------------
(Goldman, Sachs & Co.)
<PAGE> 21
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
Goldman, Sachs & Co. $100,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 100,000,000
Salomon Brothers Inc 100,000.000
------------
Total $300,000,000
</TABLE>
<PAGE> 22
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.95% Notes
due March 1, 2007
AGGREGATE PRINCIPAL AMOUNT:
$300,000,000
PRICE TO PUBLIC:
99.551% of the principal amount of the Designated Securities, plus
accrued interest, if any, from March 1, 1997 to March 7, 1997
PURCHASE PRICE BY UNDERWRITERS:
98.901% of the principal amount of the Designated Securities, plus
accrued interest from March 1 to March 7, 1997
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian for trading in the Same Day Funds Settlement System of DTC, and
to be made available for checking by the Representatives at least
twenty-four hours prior to the Time of Delivery at the office of DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
10:00 a.m. (New York City time), March 7, 1997
INDENTURE:
Indenture dated as of February 18, 1997, between the Company and
Bankers Trust Company, as Trustee
MATURITY: March 1, 2007
INTEREST RATE:
6.95%
INTEREST PAYMENT DATES:
March 1 and September 1, commencing September 1, 1997
REDEMPTION PROVISIONS:
Optional redemption by the Company based upon the Adjusted Treasury Rate
as described in the Prospectus Supplement
SINKING FUND PROVISIONS:
No sinking fund provisions
1
<PAGE> 23
DEFEASANCE PROVISIONS:
Defeasance and Discharge and Defeasance of Certain Covenants as
described in the Prospectus
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
New York, New York
DELAYED DELIVERY:
None
ADDITIONAL CLOSING CONDITIONS:
None
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.: c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Peter H. Comisar
Phone: (212) 902-5817
2
<PAGE> 24
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information
examined) by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the
"Representatives") (such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives);
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
1
<PAGE> 25
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the
2
<PAGE> 26
audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in
the consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
3
<PAGE> 27
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein)
as defined in the Underwriting Agreement as of the date of the letter delivered
on the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
<PAGE> 1
EXHIBIT 4.1
====================================================
FLUOR CORPORATION
________________
INDENTURE
DATED AS OF FEBRUARY 18, 1997
________________
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 OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.12. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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>
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.05. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.06. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.08. CONFLICTING INTERESTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. . . . . . . . . . . . . . . . . . 45
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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. . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.03. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.04. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.04. COMPLIANCE CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.05. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.06. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
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<TABLE>
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PAGE
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<S> <C>
SECTION 10.07. LIMITATIONS ON LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.08. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS. . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.09. WAIVER OF COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE ELEVEN REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.01. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.07. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 12.01. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. . . . . . . . . . . . . . . . . . . . 61
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.01. COMPANY'S RIGHT WITH RESPECT TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . . . . . . . 62
SECTION 13.02. DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.03. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 13.06. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE FOURTEEN CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 14.01. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 14.02. EXERCISE OF CONVERSION PRIVILEGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 14.03. NO FRACTIONAL SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 14.04. ADJUSTMENT OF CONVERSION PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.05. NOTICE OF CERTAIN CORPORATE ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.06. RESERVATION OF SHARES OF COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 14.07. PAYMENT OF CERTAIN TAXES UPON CONVERSION. . . . . . . . . . . . . . . . . . . . . . . . . . 68
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. . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
iii
<PAGE> 7
INDENTURE dated as of February 18, 1997, between Fluor Corporation,
a Delaware corporation (the "Company"), having its principal executive office
at 3353 Michelson Drive, Irvine, California 92698, and Bankers Trust Company,
a New York banking corporation (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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<PAGE> 8
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 New York, that Place of Payment or other particular
location referred to in this Indenture or in the Securities 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.
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<PAGE> 9
"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.
"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 which, at the time of the execution of this Indenture is located 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.
3
<PAGE> 10
"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.
"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.
4
<PAGE> 11
"Legal Holiday" shall have the meaning set forth in Section
1.14.
"Lien" means any mortgage, lien, pledge, charge, security
interest or other encumbrance.
"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 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
5
<PAGE> 12
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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 a Trust Officer of 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
6
<PAGE> 13
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.
"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.
7
<PAGE> 14
"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.
"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 within the Corporate Trust
Office of the Trustee including any Vice President, Managing Director,
Assistant Vice President, Secretary, Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"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;
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(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
(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.
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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.
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
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<PAGE> 17
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 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 its Corporate Trust Office; and
(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.
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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 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.
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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.
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.
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<PAGE> 20
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.
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.]]
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<PAGE> 21
Payment of the principal of (and premium, if any) and [if applicable, insert --
any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in _____________________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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
15
<PAGE> 22
_______________, 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,
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
FOR REDEMPTION 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.]
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<PAGE> 23
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to ______________________________, redeem any Securities
of this series as contemplated by [if applicable, insert -- Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _______________% per annum].
[If applicable, insert -- The sinking fund for this series
provides for the redemption on _______________ in each year beginning with the
year _______________ and ending with the year _______________ of [if
applicable, insert -- not less than $_______________ ("mandatory sinking fund")
and not more than] $_______________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert -- mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert --
mandatory] sinking fund payments otherwise required to be made [if applicable,
insert -- , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert
- -- In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[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
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<PAGE> 24
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 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
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<PAGE> 25
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.
[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.
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<PAGE> 26
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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.
[Name of Trustee],
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
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<PAGE> 27
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 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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<PAGE> 28
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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<PAGE> 30
(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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<PAGE> 31
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 and (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.
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<PAGE> 32
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, regulations or orders of any governmental
agency or commission having jurisdiction over the Company.
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<PAGE> 33
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 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.
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<PAGE> 34
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) 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.
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<PAGE> 35
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.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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<PAGE> 36
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 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
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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. 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
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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
(b) all such Securities not theretofore delivered
to the Trustee for cancellation
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(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 actually known to a Trust Officer with
respect to Securities of any series at the time Outstanding (other than an
Event of Default specified
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in Section 5.01(5) or (6)) occurs 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.
The Trustee shall have no obligations or liability for failure
to act in connection with any Event of Default not actually known to a Trust
Officer.
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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 satisfactory to it 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 this Indenture and the Trust Indenture Act.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture, but not to verify the contents thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) 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
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repayment of such funds or adequate indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. NOTICE OF DEFAULTS.
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 a
Trust Officer of 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 or a Trust Officer 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 conclusively rely and shall be fully
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;
(4) the Trustee may consult with counsel and the 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
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indemnity satisfactory to it 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.
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
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(3) to indemnify the Trustee (and its officers,
directors, employees and agents) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Bankruptcy such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally.
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 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.
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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.
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.
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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.
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
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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.
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.
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An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall 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.
[Name of Trustee],
As Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
Authorized Officer
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
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(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 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:
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(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.
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
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(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 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,
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(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.
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.
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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.
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
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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 in writing 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.
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
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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 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;
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(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 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
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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;
(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
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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 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
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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.
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
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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 selection, by the Trustee, of the Securities to be
redeemed shall be conclusive and binding and the Trustee shall incur no
liability in connection with such selection.
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.
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
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(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.
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.
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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 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.
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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.
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
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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.
(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
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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 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.
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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 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
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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.
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
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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
(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;
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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.
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
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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.
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
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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.
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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: /s/ J. MICHAL CONAWAY
-----------------------------------
J. Michal Conaway
Senior Vice President and
Chief Financial Officer
Attest:
[SIG]
- ------------------------------
BANKERS TRUST COMPANY, as Trustee
By: /s/ JACKIE BARTNICK
-----------------------------------
Name: Jacqueline Bartnick
---------------------------------
Title: Vice President
--------------------------------
Attest:
- ------------------------------
71
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF
VICE PRESIDENT
AND
TREASURER
PURSUANT TO SECTIONS 2.01, 3.01 AND 3.03
OF THE INDENTURE
Dated: March 7, 1997
The undersigned, Stephen F. Hull and Victor L. Prechtl do hereby
certify that they are the duly appointed and acting Vice President & Treasurer
and Vice President & Controller, respectively, of FLUOR CORPORATION, a Delaware
corporation (the "Company"). Each of the undersigned also hereby certifies,
pursuant to Sections 2.01, 3.01 and 3.03 of the Indenture, dated as of February
18, 1997 (the "Indenture"), between the Company and Bankers Trust Company, as
Trustee, that:
A. There has been established pursuant to resolutions duly adopted by
the Board of Directors of the Company (a copy of such resolutions being attached
hereto as Exhibit A) and by the Executive Committee of the Board of Directors (a
copy of such resolutions being attached hereto as Exhibit B) a series of
Securities (as that term is defined in the Indenture) to be issued under the
Indenture, with the following terms:
1. The title of the Securities of the series is "6.95% Notes due
March 1, 2007" (the "Notes").
2. The limit upon the aggregate principal amount of the Notes
which may be authenticated and delivered under the Indenture (except
for Notes authenticated and delivered upon registration of, transfer
of, or in exchange for, or in lieu of other Notes pursuant to Sections
3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture) is $300,000,000.
3. Interest on the Notes shall be payable to the persons in whose
name the Notes are registered at the close of business on the Regular
Record Date (as defined in the Indenture) for such interest payment,
except that interest payable on March 1, 2007 shall be payable to the
persons to whom principal is payable on such date.
4. The date on which the principal of the Notes is payable, unless
accelerated pursuant to the Indenture, shall be March 1, 2007.
5. The rate at which each of the Notes shall bear interest shall
be 6.95% per annum. The date from which interest shall accrue for each
of the Notes shall be March 1, 1997. The interest payment dates on
which interest on the Notes shall be payable are March 1 and September
1, commencing September 1, 1997. The regular record dates for the
interest payable on the Notes on any interest payment date shall be the
February 15 and August 15, as the case may be, immediately preceding
such interest payment date.
6. The place or places where the principal of and interest on the
Notes shall be payable, the Notes may be surrendered for registration
of transfer, the Notes may be surrendered for exchange and notices may
be given to the Company in respect of the Notes is at the office of the
Trustee, Four Albany Street, New York, New York 10006, and at the
agency of the Trustee maintained for that purpose at the office of the
Trustee; provided that payment of interest, other than at Stated
Maturity (as defined in the Indenture), may be made at the option of
the Company by check mailed to the address of
<PAGE> 2
the person entitled thereto as such address shall appear in the
Security Register (as defined in the Indenture.
7. The Notes may be redeemed, in whole or in part, at the option
of the Company at any time at a redemption price equal to the greater
of (i) 100% of the principal amount of such Notes or (ii) the sum of
the present values of the remaining scheduled payments of principal and
interest thereon discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate (as defined in the Prospectus Supplement and
as further determined in accordance with directions from the Company to
the extent not inconsistent with the terms of the Indenture, the
Prospectus or any other instrument or agreement defining the rights of
the Holders of the Notes), plus accrued interest to the date of
redemption.
8. There is no obligation of the Company to redeem or purchase the
Notes pursuant to any sinking fund or analogous provisions, or to repay
any of the Notes prior to Stated Maturity at the option of a Holder
thereof.
9. The Notes shall be issued as Global Securities (as defined in
the Indenture) under the Indenture. The Depository Trust Company is
hereby designated as the Depositary for the Notes under the Indenture.
10. The entire principal amount of the Noes shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
5.02 of the Indenture.
11. Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
B. The form of the Note is attached hereto as Exhibit C.
C. The Trustee is appointed as Paying Agent (as defined in the
Indenture).
D. The foregoing form and terms of the Notes have been established in
conformity with the provisions of the Indenture.
E. Each of the undersigned has read the provisions of Sections 3.01 and
3.03 of the Indenture and the definitions relating thereto and the resolutions
adopted by the Board of Directors of the Company and the Executive Committee
thereof delivered herewith. In the opinion of each of the undersigned, he or
she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not all conditions precedent
provided in the Indenture relating to the establishment, authentication and
delivery of a series of Securities under the Indenture, designated as the Notes
in this Certificate, have been complied with. In the opinion of each of the
undersigned, all such conditions precedent have been complied with.
F. The undersigned, by execution of this Certificate, thereby certify
the actions taken by the Executive Committee of the Board of Directors of the
Company in determining and setting the specific terms of the Notes, and hereby
further certify that attached hereto as Exhibits A, B and C, respectively, are a
copy of resolutions duly adopted by the Board of Directors of the Company on
December 11, 1996, a copy of resolutions duly adopted by the Executive Committee
of the Board of Directors as of March 4, 1997, pursuant to which the terms of
the Notes set forth above have been established, and the form of certificate
representing the Notes as duly approved by the Executive Committee of the Board
of Directors of the Company.
2
<PAGE> 3
IN WITNESS WHEREOF, the undersigned have hereunto executed this
Certificate as of the date first above written.
/s/ Stephen F. Hull
-----------------------------
Stephen F. Hull
Vice President and Treasurer
/s/ Victor L. Prechtl
-----------------------------
Victor L. Prechtl
Vice President and Controller
3
<PAGE> 4
EXHIBIT A
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF FLUOR CORPORATION
RESOLVED, That the proposed financing by this Corporation involving the
sale and issuance by this Corporation, in one or more separate domestic or
foreign financing transactions, of unsecured debt securities (the "Offered
Securities"), from time to time as determined by market conditions, in the
aggregate principal amount of not to exceed $400 million, be and it hereby is
authorized, affirmed and approved; and
FURTHER RESOLVED, That the proceeds of such financings may be utilized
for all general corporate purposes including, without limitation, investment in
equity securities, share repurchases, to repay other indebtedness of this
Corporation and for capital expenditures and general working capital
requirements and, pending such application, shall be invested in time deposits
or marketable securities; and
FURTHER RESOLVED, That the Executive Committee, acting by the majority
vote or unanimous written consent of all its members, shall be authorized and
empowered to take the following action on behalf of this Corporation as the
action of this Board of Directors; (i) fix and approve the form of the Offered
Securities and the terms thereof, including without limitation, the interest
rates, maturity dates and redemption provisions, (ii) fix and approve the terms
and provisions of any Trust Indenture(s) pursuant to which the offered
Securities will be issued and select the Indenture Trustee(s) thereunder, (iii)
select paying agents or fiscal and paying agents for the Offered Securities in
such locations as shall be determined by the Executive Committee and fix the
terms of the agreement(s) to be entered into between this Corporation and such
agents, (iv) select the Managing Underwriter(s), if any, for the Offered
Securities offerings and fix the public offering price of the Offered
Securities, the amount of the underwriting discount and the other terms and
provisions of the underwriting agreement(s) in connection therewith, (v) make
application for and cause the listing of the Offered Securities on such stock
exchange(s) as the Executive Committee shall select, (vi) take such action to
enable such financings to comply with applicable domestic or foreign securities
and other laws; and (vii) take such other action and enter into such further
agreements on behalf of this Corporation and its subsidiaries as such Executive
Committee shall deem necessary or desirable to carry out the financing
authorized by these resolutions in a manner consistent with the provisions of
these resolutions; and
FURTHER RESOLVED, That the officers of this Corporation, or any of
them, be and each hereby is authorized, empowered and directed to take such
action on behalf of this Corporation and to execute and deliver such documents,
instruments, agreements or certificates on behalf of this Corporation, in each
case as such officers, or any of them, deems necessary or advisable to carry out
and implement the transactions authorized by these resolutions or by the
Executive Committee acting pursuant to these resolutions.
4
<PAGE> 5
EXHIBIT B
RESOLUTIONS
OF
THE EXECUTIVE COMMITTEE
OF
FLUOR CORPORATION
TERMS OF DEBT SECURITIES
------------------------
BE IT RESOLVED, that the terms and conditions set forth in, and the
execution and delivery of, the Underwriting Agreement and the Pricing Agreement,
dated March 4, 1997, by and between the Company and the several underwriters
named in Schedule I thereto, are hereby approved.
RESOLVED FURTHER, that the terms and conditions of the Indenture, dated
February 18, 1997 (the "Indenture"), by and between the Company and Bankers
Trust Company, as Trustee (the "Trustee"), and the execution and delivery of the
Indenture by the officers of the corporation, are hereby ratified, confirmed and
approved.
RESOLVED FURTHER, that with respect to the Company's issuance and sale
of $300,000,000 in aggregate principal amount of a series of debt securities due
March 1, 2007 (the "Notes") under the Indenture, the following terms are hereby
approved:
1. The title of the Notes of the series is "6.95% Notes due March 1,
2007".
2. The limit upon the aggregate principal amount of the Notes which may
be authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or
11.07 of the Indenture) is $300,000,000.
3. Interest on the Notes shall be payable to the persons in whose name
the Notes are registered at the close of business on the Regular Record Date (as
defined in the Indenture) for such interest payment, except that interest
payable on March 1, 2007 shall be payable to the persons to whom principal is
payable on such date.
4. The date on which the principal of the Notes is payable, unless
accelerated pursuant to the Indenture, shall be March 1, 2007.
5. The rate at which each of the Notes shall bear interest shall be
6.95% per annum. The date from which interest shall accrue for each of the
Notes shall be March 1, 1997. The interest payment dates on which interest on
the Notes shall be payable are March 1 and September 1, commencing September 1,
1997. The regular record dates for the interest payable on the Notes on any
interest payment date shall be the February 15 and August 15, as the case may
be, immediately preceding such interest payment date.
6. The place or places where the principal of and interest on the Notes
shall be payable, the Notes may be surrendered for registration of transfer, the
Notes may be surrendered for exchange and notices may be given to the Company in
respect of the Notes is at the office of the Trustee, Four Albany Street, New
York, New York 10006, and at the agency of the Trustee maintained for that
purpose at the office of the Trustee; provided that payment of interest, other
than at Stated Maturity (as defined in the Indenture), may be made at the option
of the Company by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register (as defined in the
Indenture).
5
<PAGE> 6
7. The Notes may be redeemed, in whole or in part, at the option of the
Company at any time at a redemption price equal to the greater of (i) 100% of
the principal amount of such Notes or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate (as defined in the
Prospectus Supplement), plus accrued interest to the date of redemption.
8. There is no obligation of the Company to redeem or purchase the
Notes pursuant to any sinking fund or analogous provisions, or to repay the
Notes prior to Stated Maturity at the option of a Holder thereof.
9. The Notes shall be issued as Global Securities (as defined in the
Indenture) under the Indenture. The Depository Trust Company is hereby
designated as the Depositary for the Notes under the Indenture.
10. The entire principal amount of the Notes shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.02 of
the Indenture.
11. Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
6
<PAGE> 7
EXHIBIT C
NO. $
FLUOR CORPORATION
6.95% NOTE DUE MARCH 1, 2007
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
PRINCIPAL AMOUNT:
MATURITY DATE: March 1, 2007
DATED DATE: March 7, 1997
INTEREST RATE: 6.95%
CUSIP: 343861 AK 6
INTEREST PAYMENT DATES: March 1 and September 1, commencing September 1, 1997
REGULAR RECORD DATES: February 15 and August 15
7
<PAGE> 8
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 Cede & Co., or registered assigns, the principal sum of $____
Dollars on March 1, 2007 and to pay interest thereon from March 1, 1997 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 1 and September 1 in each year, commencing
September 1, 1997, at the rate of 6.95% per annum, until the principal hereof is
paid or made available for payment. 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 February 15 or August
15 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, 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; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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 February 18, 1997 (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 or
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$300,000,000.
The Securities of this series are subject to redemption prior to the
Stated Maturity upon not less than 30 days' notice by mail, at any time, as a
whole or in part, at the election of the Company, at a redemption price equal to
the greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by a Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in each
case, accrued interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.05%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be
8
<PAGE> 9
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(A) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Trustee after consultation with the Company. "Reference Treasury Dealer" means
(i) Goldman, Sachs & Co. and their successors; provided, however, that if the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer
selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Securities to be
redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Securities or
portions thereof called for redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
In an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification 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.
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
9
<PAGE> 10
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 $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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.
10
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March ___, 1997 FLUOR CORPORATION
By:
---------------------------
Attest:
- ----------------------------
- ----------------------------
CERTIFICATE OF AUTHENTICATION
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
11
<PAGE> 12
[FORM OF ASSIGNMENT]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- Custodian
---------------- --------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
-----------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert Social Security or Other
Identifying Number of Assignee
---------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- -------------------------------------
- -------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _______________________________________________ Attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
------------------------------
-------------------------------------
-------------------------------------
Notice: The signature to this
assignment must correspond with
the name as written on the face
of the within instrument in
every particular, without
alteration or enlargement, or
any change whatever.
12
<PAGE> 1
EXHIBIT 5
GIBSON, DUNN & CRUTCHER LLP
LAWYERS
JAMBOREE CENTER
4 PARK PLAZA
IRVINE, CALIFORNIA 92614-8557
(714) 451-3800
March 7, 1997
(714) 451-3800 C 29019-00856
Fluor Corporation
3353 Michelson Drive
Irvine, CA 92698
Re: Fluor Corporation -- 6.95% Notes due March 1, 2007
Ladies and Gentlemen:
We have acted as legal counsel to Fluor Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act") of $300,000,000 in aggregate
principal amount of 6.95% Notes due March 1, 2007 of the Company (the "Notes").
The Notes are being issued under an Indenture, dated as of February 18, 1997
(the "Indenture"), among the Company and Bankers Trust Company, as Trustee.
We have examined such documents, records and matters of law as we have
deemed necessary for the purposes of this opinion. In connection with our
examination of such documents, we have assumed the genuineness 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.
Based upon the foregoing, in reliance thereon and subject to the
assumptions, qualifications and limitations set forth herein, it is our opinion
that: (1) the Notes, upon issuance thereof and timely payment in full therefor
in the manner described in the Registration Statement on Form S-3 (File No.
333-18315) of the Company (the "Registration Statement"), the Prospectus dated
February 18, 1997 and the Prospectus Supplement dated March 4, 1997 describing
the terms of the Notes as issued, will be validly issued, fully paid and
non-assessable and (2) the Notes so issued will be legally binding obligations
of the Company, entitled to the benefits provided under the Indenture pursuant
to which they are to be issued.
Our opinions set forth above are subject to (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
<PAGE> 2
Fluor Corporation
March 7, 1997
Page 2
creditors' rights generally and (b) the effect of general principles of equity
that may limit the enforceability of any of the remedies, covenants or other
provisions of the Notes and the Indenture and 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).
In addition, we express no opinion as to (a) any provisions of the
Notes or the Indenture regarding the remedies available to any person (i) to
take action that is arbitrary, unreasonable or capricious or is not taken in
good faith or in a commercially reasonable manner, whether or not such action is
permitted under the Notes or the Indenture or (ii) for violations or breaches
that are determined by a court to be non-material or without substantially
adverse effect upon the Company to perform its material obligations under the
Notes or the Indenture; or (b) the provisions of the Notes or the Indenture that
may provide for interest on interest or penalty interest.
The Company is a Delaware corporation. 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. Subject to the foregoing, this
opinion is limited to Delaware, New York and federal law.
This opinion may not be quoted in whole or in part without our prior
written consent.
We hereby consent to the incorporation by reference of this opinion in
the Company's Current Report on Form 8-K, event date March 4, 1997. In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the General Rules and
Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
---------------------------------
GIBSON, DUNN & CRUTCHER LLP
TDM/JMW/GCT
