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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): January 24, 1997
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FMC Corporation
___________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware
____________________________________________________________________
(State or other jurisdiction of incorporation)
1-2376 94-0479804
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(Commission File Number) (IRS Employer Identification No.)
200 East Randolph Drive, Chicago, Illinois 60601
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 861-6000
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Item 5. Other Events.
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The purpose of this Current Report on Form 8-K is to file a conformed copy
of an executed U.S. Distribution Agreement (attached hereto as Exhibit 1-a)
executed in connection with the proposed issuance of Medium-Term Notes, Series A
(the "Notes") by the Registrant to be issued pursuant to the Registration
Statement on Form S-3 (File No. 33-62415) filed by the Registrant on September
7, 1995, as amended through the date hereof (the "Registration Statement"),
together with a conformed copy of an executed Indenture (attached hereto as
Exhibit 4-a), a conformed copy of an executed Officers' Certificate (attached
hereto as Exhibit 4-b), forms of the Notes (attached hereto as Exhibit 4-c), the
opinion of Winston & Strawn (attached hereto as Exhibit 10-a) and the consent of
Winston & Strawn (included in Exhibit 10-a) for incorporation into the
Registration Statement.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
Number Description
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1-a Conformed copy of executed U.S. Distribution Agreement
dated January 24, 1997 between the Registrant and the
agents named therein.
4-a Conformed copy of executed Indenture dated as of July
1, 1996 between the Registrant and Harris Trust and
Savings Bank, as trustee.
4-b Form of Officers' Certificate dated January 24, 1997
establishing the Registrant's Medium-Term Notes, Series
A.
4-c Forms of Notes of the Registrant.
10-a Opinion of Winston & Strawn
23-a Consent of Winston & Strawn (included in its opinion
filed as Exhibit 10-a)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: January 24, 1997 FMC CORPORATION
By: /s/ Robert L. Day
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Title: Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page Number
Number Description In This Report
- -------- ----------- --------------
<S> <C> <C>
1-a Conformed copy of executed U.S.
Distribution Agreement dated
January 24, 1997 between the
Registrant and the agents named
therein.
4-a Conformed copy of executed
Indenture dated as of July 1,
1996 between the Registrant and
Harris Trust and Savings Bank,
as trustee.
4-b Form of Officers' Certificate
dated January 24, 1997
establishing the Registrant's
Medium-Term Notes, Series A.
4-c Forms of Notes of the
Registrant.
10-a Opinion of Winston & Strawn
23-a Consent of Winston & Strawn
(included in its opinion filed
as Exhibit 10-a)
</TABLE>
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EXHIBIT 1-a
FMC CORPORATION
$400,000,000
Medium-Term Notes, Series A
Due more than 9 Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
January 24, 1997
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
J. P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
FMC Corporation, a Delaware corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of up to $400,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its Medium-Term Notes, Series A, due more than 9 months from date of
issue (the "Notes"). The Notes will be issued under an Indenture dated as of
July 1, 1996 (the "Indenture") between the Company and Harris Trust and Savings
Bank, as Trustee (the "Trustee"), and will have the maturities, interest rates,
redemption provisions if any, and other terms as set forth in supplements to the
Basic Prospectus referred to below.
The Company hereby appoints Morgan Stanley & Co. Incorporated ("Morgan
Stanley"), J. P. Morgan Securities Inc. ("J. P. Morgan") and Salomon Brothers
Inc ("Salomon") (individually, an "Agent" and collectively, the "Agents") as its
agents, subject to Section 11, for the purpose of soliciting and receiving
offers to purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use reasonable efforts to
solicit and receive offers to purchase Notes
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upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. In addition, any Agent may also
purchase Notes as principal pursuant to the terms of a terms agreement relating
to such sale (a "Terms Agreement") in accordance with the provisions of Section
2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each Agent as of the Commencement Date, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent pursuant to a Terms Agreement), as of each date on which the Company
issues and delivers Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations, warranties and agreements shall be deemed to relate
to the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and, to
the knowledge of the Company, no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
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complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information furnished to the Company in
writing by an Agent expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustee and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any date on
which the Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(d) There has not occurred any material adverse change in the condition,
financial or otherwise, or in the business or operations of the Company and its
subsidiaries, taken as a whole, from the information set forth in the
Registration Statement and Prospectus.
(e) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
Notwithstanding the foregoing, the representations and warranties set forth
in Section 1(b)(iii) and (iv), and (c) (except
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as to due authorization of the Notes), when made as of the Commencement Date
with respect to any Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. In connection with an Agent's actions as agent
hereunder, such Agent agrees to use reasonable efforts to solicit offers to
purchase Notes upon the terms and conditions set forth in the Prospectus as then
amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of notice from the
Company, the Agents will forthwith suspend solicitations of offers to purchase
Notes from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed. While such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or letters
in accordance with Sections 5(a), 5(b) and 5(c); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change the Agents deem to
be immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters as such Agent may request. The Company also reserves the right to sell,
solicit and accept offers to purchase Notes directly on its own behalf.
The Company agrees to pay to each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
such Agent, a commission in the form of a discount from the purchase price of
such Note equal to the percentage set forth below of the purchase price of such
Note:
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Term Commission Rate
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From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
Beyond 30 years To be negotiated
For purposes of the foregoing, the term of any Note that is repayable at
the option of the holder on a date prior to its stated maturity date shall be
measured by reference to the optional repayment date rather than the stated
maturity date.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in part.
Each Agent shall have the right to reject any offer to purchase Notes that it
considers to be unacceptable, and any such rejection shall not be deemed a
breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
Subject to the provisions of this Section and to the Administrative
Procedures or such other procedures agreed upon in writing from time to time by
each Agent and the Company after notice to, and in the case of procedures which
affect the rights, duties or obligations of the Trustee, with the approval of,
the Trustee, offers for the purchase of Notes may be solicited by each Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time sell Notes otherwise than through
an Agent; provided, however, that so long as this Agreement shall be in effect
the Company shall not solicit offers to purchase Notes through any agents other
than the Agents. It is understood that if from time to time the Company is
approached by a prospective agent offering a specific purchase of Notes, the
Company may engage such agent with respect to such specific purchase, provided
that (i) such agent is engaged on terms substantially similar (including the
same commission schedule) to
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the applicable terms of this Agreement and (ii) the Agents are given notice of
such purchase promptly after it is consummated.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement. In connection with
each such sale, the Company will enter into a Terms Agreement that will provide
for the sale of such Notes to and the purchase thereof by such Agent. Each Terms
Agreement will take the form of either (i) a written agreement between such
Agent and the Company, which may be substantially in the form of Exhibit A
hereto (a "Written Terms Agreement"), or (ii) an oral agreement between such
Agent and the Company confirmed in writing by such Agent to the Company.
An Agent's commitment to purchase Notes pursuant to a Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each such Terms Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the independent
public accountants of the Company pursuant to Section 4 hereof. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by an Agent pursuant to a Terms Agreement is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Terms Agreement, if you are purchasing
Notes as principal you may resell such Notes to other dealers. Any such sales
may be at a discount, which shall not exceed the amount set forth in the
Prospectus Supplement relating to such Notes.
(c) Administrative Procedures. The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed in
the Medium-Term Notes Administrative Procedures (attached hereto as Exhibit B)
(the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
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(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to each Agent's obligation to begin
soliciting offers to purchase Notes as an agent of the Company shall be
delivered at the office of Mayer, Brown & Platt, counsel for the Agents, not
later than 5:00 p.m., New York time, on the date hereof, or at such other time
and/or place as the Agents and the Company may agree upon in writing, but in no
event later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes and (ii) the first date on
which the Company accepts any offer by an Agent to purchase Notes pursuant to a
Terms Agreement. The date of delivery of such documents is referred to herein as
the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the obligations of
the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or amendment to
which the Agents reasonably object; provided, however, that (i) the foregoing
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be delivered
to the Agents promptly after being transmitted for filing with the Commission
and (ii) any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved by the Agent
or Agents offering such Notes. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or transmitted
for filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Basic Prospectus (except that notice of the
filing of an amendment or supplement to the Basic Prospectus that merely sets
forth the terms or a description of particular Notes shall only be given to the
Agent or Agents offering such Notes), (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any
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notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order or notice of suspension of qualification and, if issued,
to obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Securities Act, any event occurs or condition exists as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances when
the Prospectus, as then amended or supplemented, is delivered to a purchaser,
not misleading, or if it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law, the
Company will immediately notify the Agents by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Notes and, if so notified
by the Company, the Agents shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus, as then
amended or supplemented, it shall so advise the Agents promptly by telephone
(with confirmation in writing) and, at its expense, shall prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the Agents
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other provision of
this Section 3(b), until the distribution of any Notes an Agent may own as
principal has been completed, if any event described above in this paragraph (b)
occurs, the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to such
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Agent, will supply such amended or supplemented Prospectus to such Agent in such
quantities as it may reasonably request and shall furnish to such Agent pursuant
to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it may request in connection with the
preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders and to
the Agents as soon as practicable earning statements that satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as such Agent may reasonably
request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as the Agents
shall reasonably request; provided, however, that in connection therewith the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified, to file a general consent to
service of process in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
subject.
(f) The Company shall furnish to the Agents such relevant documents and
certificates of officers of the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indenture, the Notes, this Agreement, the
Administrative Procedures, any Terms Agreement and the performance by the
Company of its obligations hereunder or thereunder as the Agents may from time
to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any written notice of any intended or
potential downgrading or of any possible change that does not indicate the
direction of the possible change, in the
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rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated, pay
all expenses incident to the performance of its obligations under this Agreement
and any Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
fees and disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under securities or
Blue Sky laws in accordance with the provisions of Section 3(e), including
filing fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Memoranda (up to $7,500), (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of any Blue Sky
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Notes, (viii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors, (ix) the fees and disbursements of
counsel for the Agents incurred in connection with the offering and sale of the
Notes, including any opinions to be rendered by such counsel hereunder, and (x)
any reasonable out-of-pocket expenses incurred by the Agents; provided that any
advertising expenses incurred by the Agents shall have been approved by the
Company.
(i) During the period beginning the date of any Terms Agreement and
continuing to and including the Settlement Date with respect to such Terms
Agreement, the Company will not, without such Agent's prior written consent,
which consent shall not be unreasonably withheld, offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to such Notes
(other than (i) the Notes that are to be sold pursuant to such Terms Agreement,
(ii) Notes previously agreed to be sold by the Company and (iii) commercial
paper issued in the ordinary course of business), except as may otherwise be
provided in such Terms Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation
to solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the obligation
of any other purchaser to purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in
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each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's obligation to purchase Notes, at
the time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such solicitation or
at the time such offer to purchase was made, that, in the judgment of the
relevant Agent, is material and adverse and that makes it, in the judgment
of such Agent, impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, either of the
New York Stock Exchange or the National Association of Securities Dealers,
Inc., (B) suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by either Federal
or New York State authorities or (D) any outbreak or escalation of major
hostilities or any significant change in financial markets or any calamity
or crisis that, in the judgment of the relevant Agent, is material and
adverse and, in the case of any of the events described in clauses (ii)(A)
through (D), such event, singly or together with any other such event,
makes it, in the judgment of such Agent, impracticable to market the Notes
substantially on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such solicitation or
at the time such offer to purchase was made;
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
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(iv) no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission.
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to the relevant Agent in writing by the
Company prior to such solicitation or, in the case of a purchase of
Notes, as disclosed to the relevant Agent before the offer to purchase
such Notes was made or (B) unless in each case described in (ii)
above, the relevant event shall have occurred and been known to the
relevant Agent before such solicitation or, in the case of a purchase
of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement, on
the corresponding Settlement Date, the relevant Agents shall have received:
(i) The opinion, dated as of such date, of Winston & Strawn, counsel
for the Company, to the effect that:
(A) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms subject, as to
enforcement of remedies, to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law and has been duly
qualified under the Trust Indenture Act;
(B) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof on the date of
such opinion, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
subject, as to enforcement of remedies, to bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles regardless of whether such enforceability
is considered in a proceeding in equity or at law and will be entitled
to the benefits of the Indenture;
-12-
<PAGE>
(C) each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company;
(D) the execution, delivery and performance of this Agreement,
the Notes, the Indenture and any applicable Terms Agreement by the
Company, and the issuance and sale of the Notes by the Company as
provided in this Agreement, any applicable Terms Agreement and the
Indenture, will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, the certificate
of incorporation or by-laws of the Company, or the 5-Year Credit
Agreement dated as of December 6, 1996 among the Company, the lenders
listed therein and Morgan Guaranty Trust Company of New York, as
Agent, or the 364-Day Credit Agreement dated as of December 6, 1996
among the Company, the lenders listed therein and Morgan Guaranty
Trust Company of New York, as Agent;
(E) no authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or
political subdivision thereof is required for the issuance, sale or
performance of the Company's obligations with respect to the Notes, in
the manner contemplated by this Agreement, any applicable Terms
Agreement, the Notes and the Indenture, except such as are specified
and have been obtained and such as may be required by the securities
or blue sky laws of the various states in connection with the offer
and sale of the Notes;
(F) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes," "Plan of
Distribution" and "Description of the Debt Securities," and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents
and proceedings;
(G) the statements in the Prospectus, as then amended or
supplemented, under the caption "United States Federal Taxation",
fairly summarize the material United States federal income tax
consequences of ownership and disposition of the Notes to initial
holders purchasing Notes at the issue price;
(H) such counsel is of the opinion that the Registration
Statement and Prospectus, as then amended or
-13-
<PAGE>
supplemented, if applicable (except for the documents incorporated by
reference therein, the financial statements and schedules and other
financial data and that part of the Registration Statement that
constitutes the Form T-1 of the Trustee as to which such counsel need
not express any opinion), comply as to form in all material respects
with the Securities Act and the rules and regulations of the
Commission thereunder;
Such counsel shall also have furnished to you a written
statement, in form and substance satisfactory to you, to the effect
that nothing has come to such counsel's attention that causes them to
believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief
and except for that part of the Registration Statement that
constitutes the Form T-1 of the Trustee) each part of the Registration
Statement, as then amended, if applicable, at the time such part
became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as then amended or supplemented, if applicable, as of the
date such statement is delivered, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(ii) The opinion, dated as of such date, of the General Counsel or
Assistant General Counsel for the Company, to the effect that:
(A) the Company is validly existing as a corporation in good
standing under the laws of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
and has all corporate power and authority under its certificate of
incorporation, bylaws and the laws of the State of Delaware to own,
lease and operate its properties and conduct its business as described
in the Prospectus as then amended or supplemented;
(B) each Significant Subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the
-14-
<PAGE>
Company organized under the laws of any state of the United States is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
whole;
(C) neither the Company nor any subsidiary is in violation of its
certificate of incorporation or by-laws or, to the best of such
counsel's knowledge after due inquiry, in default in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
indenture, lease, loan agreement or other instrument governing any
indebtedness to which the Company or any subsidiary is a party or by
which the Company or any subsidiary or their property or claims is
bound, except to the extent that such violation or default would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(D) such counsel is not aware after due inquiry of the Company's
failure to possess or to be in compliance with any franchises, grants,
authorizations, licenses, permits, easements, consents, certificates
or orders required for the conduct of the business of the Company or
any subsidiary, except to the extent that the failure to so possess or
comply would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(E) except as disclosed in the Prospectus, as then amended or
supplemented, the securities of each direct or indirect subsidiary of
the Company listed on Exhibit 21 to the Company's most recent Annual
Report on Form 10-K which is a Significant Subsidiary (as defined
above) are owned by the Company or a subsidiary of the Company to the
extent described therein free and clear of all liens and encumbrances
and any other adverse claims;
(F) the execution, delivery and performance of this Agreement,
the Notes, the Indenture and any applicable Terms Agreement by the
Company and the issuance and sale of the Notes by the Company as
provided in this Agreement, any applicable Terms Agreement and the
Indenture, will not result in a breach or violation of any of the
terms or provisions of, or constitute a
-15-
<PAGE>
default under, the certificate of incorporation of the Company or any
Significant Subsidiary, or any provision of applicable law or
administrative regulation known to such counsel or any agreement or
other instrument known to such counsel binding upon the Company or any
subsidiary and which is material to the Company and its subsidiaries
taken as a whole or any decree of any court known to such counsel
applicable to the Company or any subsidiaries or any of their
properties;
(G) such counsel does not know of any action, suit or proceeding
pending or threatened against or affecting the Company or any of its
properties before or by any court, governmental official, commission,
board or other administrative agency or arbitrator that has a
reasonable probability (taking into account the exhaustion of all
appeals) of having a material adverse effect on the business,
operations, properties, consolidated financial condition, consolidated
results of operations or business prospects of the Company, except as
disclosed in the Prospectus, as then amended or supplemented, or that
in any manner questions the validity of this Agreement, any applicable
Terms Agreement, the Indenture or the Notes;
(H) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company is subject that is required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, and is not so described or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required;
(I) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended; and
(J) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented, if applicable (except for
financial statements and schedules and other financial data and that
part of the Registration Statement that constitutes the Form T-1 of
the Trustee as to which such counsel need not express any opinion)
complied as to form when filed with the Commission in all material
respects with the
-16-
<PAGE>
Exchange Act, and the rules and regulations of the Commission
thereunder.
Such counsel shall also have furnished to you a written statement
in form and substance satisfactory to you, to the effect that nothing
has come to such counsel's attention that causes him or her to believe
that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief
and except for that part of the Registration Statement that
constitutes the Form T-1 of the Trustee) each part of the Registration
Statement, as then amended, if applicable, at the time such part
became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as then amended or supplemented, if applicable, as of the
date such statement is delivered, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(iii) The opinion, dated as of such date, of Mayer, Brown & Platt,
counsel for the Agents, covering the matters in subparagraphs (A), (B),
(C), (F) (but only as to the statements in the Prospectus, as then amended
or supplemented, under the captions "Description of Notes," "Plan of
Distribution" and "Description of the Debt Securities"), and (H) in
paragraph (b)(i) above. Such counsel shall also have furnished to you a
written statement to the same effect as the last sentence of paragraph
(b)(i) above.
Notwithstanding the foregoing, the opinions described in subparagraphs
(B) (except as to due authorization of the Notes), (E) and (F) of paragraph
(b)(i) above, when contained in an opinion delivered on the Commencement
Date or pursuant to Section 5(b), shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission
to Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices,
equity indices or other factors.
With respect to the last sentence of paragraph (b)(ii) above, such
counsel may state that his opinion and belief is based upon his
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by
-17-
<PAGE>
reference and review and discussion of the contents thereof, but is without
independent check or verification, except as specified. With respect to the
last sentence of paragraph (b)(i) above, Winston & Strawn and Mayer, Brown
& Platt may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of
the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
The opinions of Winston & Strawn and the General Counsel or the
Assistant General Counsel of the Company described in paragraphs (b)(i) and
(b)(ii) above shall be rendered to the Agents at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms Agreement, on
the corresponding Settlement Date, the relevant Agents shall have received a
certificate, dated the Commencement Date or such Settlement Date, as the case
may be, and signed by an executive officer of the Company, to the effect set
forth in subparagraphs (a)(iii) and (a) (iv) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms Agreement, on
the corresponding Settlement Date, KPMG Peat Marwick LLP and Ernst & Young LLP
shall have furnished to the relevant Agents a letter or letters, dated the
Commencement Date or such Settlement Date, as the case may be, in form and
substance satisfactory to such Agents containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus, as then amended
or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company shall
have furnished to the relevant Agents such appropriate further information,
certificates and documents as they may reasonably request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) Each time the Registration
Statement or Prospectus is amended or supplemented
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<PAGE>
(other than by an amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be immaterial), the
Company will deliver or cause to be delivered forthwith to each Agent a
certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a),
the Company will furnish or cause to be furnished forthwith to each Agent
written opinions of counsel for the Company. Any such opinions shall be dated
the date of such amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the opinions
referred to in Sections 4(b)(i) and (ii), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinions, counsel last
furnishing such opinions to an Agent may furnish to each Agent a letter to the
effect that such Agent may rely on such counsel's last opinion to the same
extent as though it were dated the date of such letter (except that statements
in such last opinion will be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented to the time of delivery of such
letter).
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls any Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Agent or any such controlling person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact
-19-
<PAGE>
contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to such Agent furnished to the Company in writing by such Agent
expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley or, if Morgan Stanley is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents
-20-
<PAGE>
that are indemnified parties, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party to the extent set
forth above from and against any loss or liability by reason of such settlement
or judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each Agent on the other hand from the offering of such Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and each Agent on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the other hand in
connection with the offering of such Notes shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by each Agent in respect thereof. The relative fault of
the Company on the one hand and each Agent on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by such Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Each Agent's
obligation to contribute pursuant to this Section 6 shall be several in the
proportion that the principal amount of the Notes
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<PAGE>
the sale of which by or through such Agent gave rise to such losses, claims,
damages or liabilities bears to the aggregate principal amount of the Notes the
sale of which by or through any Agent gave rise to such losses, claims, damages
or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) of this Section 6. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) of this Section 6 shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) of this Section 6 that were offered and sold to the
public through such Agent exceeds the amount of any damages that such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6,
representations, warranties and other statements of the Company, its officers
and the Agents set forth in or made pursuant to this Agreement or any Terms
Agreement will remain in full force and effect regardless of (i) any termination
of this Agreement or any such Terms Agreement, (ii) any investigation made by or
on behalf of any Agent or any person controlling any Agent or by or on behalf of
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and in connection
with the sale of any Notes by the Company (other than Notes sold to an Agent
pursuant to a Terms Agreement), each Agent is acting solely as agent of the
Company and does not assume any obligation towards or relationship of agency or
trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and
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<PAGE>
accepted by the Company, but such Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. If the
Company shall default in its obligations to deliver Notes to a purchaser whose
offer it has accepted, the Company shall hold the relevant Agent harmless
against any loss, claim, damage or liability arising from or as a result of such
default and shall, in particular, pay to such Agent the commission it would have
received had such sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time by the Company
or, as to any Agent, by the Company or such Agent upon the giving of written
notice of such termination to the other parties hereto, but without prejudice to
any rights, obligations or liabilities of any party hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Terms Agreement, and the termination of any such Terms
Agreement shall not require termination of this Agreement. If this Agreement is
terminated, the provisions of the third paragraph of Section 2(a), Section 2(e),
the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 11, 13 and
14 shall survive; provided that if at the time of termination an offer to
purchase Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive
until such delivery has been made.
9. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to Morgan Stanley, J. P. Morgan or Salomon will be
mailed, delivered or telefaxed and confirmed to Morgan Stanley at 1251 Avenue of
the Americas, New York, New York 10020, Attention: Manager, Credit Department
(telefax number: 212-703-4575), with a copy to 1221 Avenue of the Americas, New
York, New York 10020, Attention: Managing Director, Debt Syndicate (telefax
number: 212-764-7490), to J. P. Morgan at 60 Wall Street, New York, New York
10260, Attention: MTN Desk (telefax number: 212-648-5907 or to Salomon at Seven
World Trade Center, New York, New York 10048, Attention: MTN Department (telefax
number: 212-783-2274), respectively or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 200 East Randolph Drive,
Chicago, Illinois 60601, Attention: Ruud P. Roggekamp (telefax number: 312-861-
6144) with a copy to Robert L. Day (telefax number: 312-861-7127).
10. SUCCESSORS. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of
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<PAGE>
Notes (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
11. AMENDMENTS. This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company and
each Agent; provided that the Company may from time to time, on one day prior
written notice to the Agents but without the consent of any Agent, amend this
Agreement to add as a party hereto one or more additional firms registered under
the Exchange Act, whereupon each such firm shall become an Agent hereunder on
the same terms and conditions as the other Agents that are parties hereto. The
Agents shall sign any amendment or supplement giving effect to the addition of
any such firm as an Agent under this Agreement.
12. COUNTERPARTS. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
FMC CORPORATION
By /s/ Henry Kahn
-----------------------------------
Title: Vice President and Treasurer
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael Fusco
--------------------------------
Title: Vice President
J. P. MORGAN SECURITIES INC.
By /s/ David A. Olsen
--------------------------------
Title: Vice President
SALOMON BROTHERS INC
By /s/ Martha D. Bailey
--------------------------------
Title: Vice President
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<PAGE>
EXHIBIT A
FMC CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
_______________________, 19__
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Ruud P. Roggekamp
Re: Distribution Agreement dated
January 24, 1997
(the "Distribution Agreement")
------------------------------
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
- ---- ----------------
Morgan Stanley & Co.
Incorporated
[Insert syndicate list]1
Total....................... $
============
The Notes shall have the following terms:
- --------------
/1/ Delete if the transaction will not be syndicated.
A-1
<PAGE>
<TABLE>
<CAPTION>
All Notes: Fixed Rate Notes: Floating Rate Notes:
- --------------------- ----------------- --------------------
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: payment upon Spread:
acceleration:
Settlement date If yes, state Spread multiplier:
and time: issue price:
Alternate rate
event spread:
Place of Amortization Initial interest
delivery: schedule: rate:
Specified
currency:
Maturity date: Initial interest
reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield to Maximum interest
maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation
agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
</TABLE>
A-2
<PAGE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6, 9, 10, 11 and
14 of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as __________ may specify, to purchase the Notes which such
defaulting or Agents agreed but failed or refused to purchase on such date;
provided that in no event shall the amount of Notes that any Agent has agreed to
purchase pursuant to this Agreement be increased pursuant to this paragraph by
an amount in excess of one-ninth of such amount of Notes without the written
consent of such Agent. If on the Settlement Date any Agent or Agents shall fail
or refuse to purchase Notes and the aggregate amount of Notes with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Notes to be purchased on such date, and arrangements satisfactory to ___________
and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Agent or the Company. In any such case either _________ or
the Company shall have the right to postpone the Settlement Date but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Agent from liability in respect of any default of such
Agent under this Agreement.]2
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of Sections
3(h), 6, 9, 11, 13 and 14 of the Distribution Agreement shall survive for the
purposes of this Agreement.
- --------------------
2 Delete if the transaction will not be syndicated.
A-3
<PAGE>
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
____________________
[NAME OF RELEVANT AGENT(S)]
By
-----------------------------
Title:
Accepted:
FMC CORPORATION
By
---------------------------
Title:
A-4
<PAGE>
EXHIBIT B
FMC CORPORATION
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
__________________________
Explained below are the administrative procedures and specific terms of the
offering of Medium-Term Notes (the "Notes"), on a continuous basis by FMC
Corporation (the "Company") pursuant to the Distribution Agreement, dated as of
January 24, 1997 (the "Distribution Agreement") among the Company and Morgan
Stanley & Co. Incorporated, J. P. Morgan Securities Inc. and Salomon Brothers
Inc (the "Agents"). The Notes will be issued under an Indenture dated as of July
1, 1996 (the "Indenture") between the Company and Harris Trust and Savings Bank,
as trustee (the "Trustee"). In the Distribution Agreement, the Agents have
agreed to use reasonable efforts to solicit purchases of the Notes, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes sold through an Agent, as agent of the Company. An
Agent, as principal, may also purchase Notes for its own account, and if
requested by such Agent, the Company and such Agent will enter into a terms
agreement (a "Terms Agreement"), as contemplated by the Distribution Agreement.
The administrative procedures explained below will govern the issuance and
settlement of any Notes purchased by an Agent, as principal, unless otherwise
specified in the applicable Terms Agreement.
The Trustee will be the Registrar, Calculation Agent, Authenticating Agent
and Paying Agent for the Notes and will perform the duties specified herein.
Each Note will be represented by either a Global Security (as defined below)
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate delivered to the holder thereof or a person designated by such
holder (a "Certificated Note"). Except as set forth in the Indenture, an owner
of a Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be issued
in accordance with the administrative procedures set forth in Part I hereof as
they may subsequently be amended as the result of changes in DTC'S operating
procedures. Certificated Notes will be issued in accordance with the
administrative
<PAGE>
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indenture, the Notes or any prospectus supplement relating to the
Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of January 24, 1997, and a Medium-
Term Note Certificate Agreement between the Trustee and DTC, dated as of July 2,
1990 (the "MTN Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
U.S. $200,000,000 principal amount of all such Notes that
have the same Original Issue Date, Maturity Date and other
terms. Each Global Security will be dated and issued as of
the date of its authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date," which will be
(i) with respect to an original Global Security (or any
portion thereof), its original issuance date and (ii) with
respect to any Global Security (or any portion thereof)
issued subsequently upon exchange of a Global Security, or
in lieu of a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest has been
paid or duly provided for on the predecessor Global Security
(or if no such payment or provision has been made, the
original issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes may be
B-2
<PAGE>
payable only in U.S. dollars. No Global Security will
represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts of U.S.
$100,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities will be
denominated in principal amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of $200,000,000 would,
but for the preceding sentence, be represented by a single
Global Security, then one Global Security will be issued to
represent each U.S. $200,000,000 principal amount of such
Book-Entry Note or Notes and an additional Global Security
will be issued to represent any remaining principal amount
of such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted by or
of Pricing on behalf of the Company, the Company will prepare a
Supplement: pricing supplement (a "Pricing Supplement") reflecting the
terms of such Note. The Company (i) will arrange to file a
copy of such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and (ii) will, as soon as possible and in any
event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the number
of copies of such Pricing Supplement to the relevant Agent
as such Agent shall request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to
B-3
<PAGE>
such Note. All offers accepted by the Company will be
settled on the third Business Day next succeeding the date
of acceptance pursuant to the timetable for settlement set
forth below, unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier than
the next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement) shall be as
follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note will pay
interest annually or semiannually and whether such
Note is an Amortizing Note, and, if so, the
amortization schedule, or, in the case of a
Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
4. Redemption or repayment
provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
B-4
<PAGE>
7. Price.
8. Agent's commission (if any) determined as
provided in the Distribution Agreement.
9. Whether the Note is an original Issue Discount
Note (an "OID Note"), and if it is an OID Note,
the total amount of OID, the yield to maturity,
the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
10. Whether the Note is a PERLS Note, and if it is
a PERLS Note, the Denominated Currency, the
Indexed Currency or Currencies, the Payment
Currency, the Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount of each
Indexed Currency, the Aggregate Fixed Amount of
each Indexed Currency and the Authorized
Denominations (if other than U.S. dollars).
11. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity Date
and the Final Maturity Date.
12. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if
so, the Final Maturity Date of such Note.
13. Whether the Company has the option to reset
the Interest Rate, the Spread or the Spread
Multiplier of the Note.
14. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. The
B-5
<PAGE>
Trustee will then assign a CUSIP number to the Global
Security representing such Note and will notify the
Company and the relevant Agent of such CUSIP number by
telephone as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which in the
case of Floating Rate Notes which reset daily or
weekly, shall be the date five calendar days
immediately preceding the applicable Interest
Payment Date and, in the case of all other Notes,
shall be the Record Date as defined in the Note)
and, if known, the amount of interest payable on
such Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent
any other Book-Entry Note (to the extent known at
such time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of
DTC's Participant Terminal System).
6. The number of participant accounts to be
maintained by DTC on behalf of the relevant Agent
and the Trustee.
B-6
<PAGE>
D. The Trustee will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Note
less such Agent's commission (if any). The entry of
such a deliver order shall constitute a representation
and warranty by the Trustee to DTC that (a) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the MTN Certificate
Agreement.
G. Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such Note
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such
Agent for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee will credit to the account of the
Company maintained at Bank of America Illinois,
Chicago, Illinois,
B-7
<PAGE>
in immediately available funds the amount transferred
to the Trustee in accordance with Settlement Procedure
"F".
J. Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised the Trustee that have not yet
been settled.
Settlement For sales by the Company of Book-Entry Notes to or through
Procedures an Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement) for settlement on the first Business Day after
the sale date, Settlement Procedures "A" through "J" set
forth above shall be completed as soon as possible but not
later than the respective times in New York City set forth
below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than Business Day after the
sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00
A.M., 12:00 Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If
B-8
<PAGE>
the Initial Interest Rate for a Floating Rate Book-Entry
Note has not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures "B" and
"C" shall be completed as soon as such rate has been
determined but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day before the
settlement date. Settlement Procedure "H" is subject to
extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee, after receiving notice from the
Company or the relevant Agent, will deliver to DTC, through
DTC's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure If the Trustee fails to enter an SDFS deliver order with
to Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to the
Trustee's participant account, provided that the Trustee's
participant account contains a principal amount of the
Global Security representing such Note that is at least
equal to the principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry
Notes represented by a Global Security, the Trustee will
mark such Global Security "cancelled," make appropriate
entries in the Trustee's records and send such cancelled
Global Security to the Company. The CUSIP number assigned to
such Global Security shall, in accordance with the
procedures of the CUSIP Service Bureau of Standard & Poor's
Corporation, be cancelled and not immediately reassigned. If
a withdrawal message is processed with respect to one or
more, but not all, of the Book-Entry Notes represented by a
Global Security, the Trustee will exchange such Global
Security for two Global
B-9
<PAGE>
Securities, one of which shall represent such Book-Entry
Note or Notes and shall be cancelled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the relevant
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
B-10
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is accepted by
of Pricing or on behalf of the Company, the Company will prepare a
Supplement: Pricing Supplement reflecting the terms of such Note. The
Company (i) will arrange to file a copy of such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and (ii)
will, as soon as possible and in any event not later than
the date on which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds shall
constitute "settlement" with respect to such Note. All
offers
B-11
<PAGE>
<TABLE>
<S> <C>
accepted by the Company will be settled on the third
Business Day next succeeding the date of acceptance pursuant
to the timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
date, which date shall be no earlier than the next Business
Day.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: sold by the Company to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement) shall be as
follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note and of
the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, whether such Note will pay
interest annually or semiannually and whether such
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), Maximum
</TABLE>
B-12
<PAGE>
<TABLE>
<S> <C>
Interest Rate (if any) and the Alternate Rate
Event Spread (if any).
7. Redemption or repayment provisions (if any).
8. Settlement date and time (Original Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined as
provided in the Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue Price).
15. Whether the Note is a PERLS Note, and if it is
a PERLS Note, the Denominated Currency, the
Indexed Currency or Currencies, the Payment
Currency, the Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount of each
Indexed Currency, the Aggregate Fixed Amount of
each Indexed Currency and the Authorized
Denominations (if other than U.S. dollars).
16. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity Date
and the Final Maturity Date.
17. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if
</TABLE>
B-13
<PAGE>
<TABLE>
<S> <C>
so, the Final Maturity Date of such Note.
18. Whether the Company has the option to reset
the Interest Rate, the Spread or the Spread
Multiplier of the Note.
19. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which packet
will contain the following documents in forms that have
been approved by the Company, the relevant Agent and
the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent
will acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for payment
to the account of the Company at Bank of America
Illinois, Chicago, Illinois, or to such other account
as the Company shall have specified to such Agent and
the Trustee, in immediately available funds, of an
amount equal to the price of such Note less such
Agent's commission (if any).
</TABLE>
B-14
<PAGE>
<TABLE>
<S> <C>
In the event that the instructions given by such Agent
for payment to the account of the Company are revoked,
the Company will as promptly as possible wire transfer
to the account of such Agent an amount of immediately
available funds equal to the amount of such payment
made.
E. Unless the relevant Agent is the end purchaser of
such Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send
to the Company a statement setting forth the principal
amount of the Notes outstanding as of that date under
the Indenture and setting forth a brief description of
any sales of which the Company has advised the Trustee
that have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or through
Procedures an Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement), Settlement Procedures "A" through "F" set forth
above shall be completed on or before the respective times
in New York City set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of and make payment
to Settle: for any Certificated Note, the relevant Agent will notify
the Company and the Trustee by telephone and return such
Note to the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the account of
such Agent an amount equal to the
</TABLE>
B-15
<PAGE>
<TABLE>
<S> <C>
price of such Note less such Agent's commission in respect
of such Note (if any). Such wire transfer will be made on
the settlement date, if possible, and in any event not later
than the Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the
Company will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the use
of the funds during the period when they were credited to
the account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure occurred,
the Trustee will mark such Note "cancelled," make
appropriate entries in the Trustee's records and send such
Note to the Company.
</TABLE>
B-16
<PAGE>
EXHIBIT 4-a
================================================================================
FMC CORPORATION
AND
HARRIS TRUST AND SAVINGS BANK
Trustee
----------------------
Senior Debt Securities
----------------------
INDENTURE
Dated as of July 1, 1996
------------------------
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
between
Provisions of Sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended, and the Indenture dated as of July 1, 1996
between FMC Corporation and Harris Trust and Savings Bank, as Trustee.
<TABLE>
<CAPTION>
SECTION OF ACT SECTION OF INDENTURE
- -------------- --------------------
<S> <C>
310(a)(1)......................................... 6.10
310(a)(2)......................................... 6.10
310(a)(3)......................................... N/A
310(a)(4)......................................... N/A
310(a)(5)......................................... 6.10
310(b)............................................ 6.10
310(c)............................................ N/A
311(a)............................................ 6.11
311(b)............................................ 6.11
311(b)(2)......................................... 6.11
311(c)............................................ N/A
312(a)............................................ 4.1
312(b)............................................ 4.2(b)
312(c)............................................ 4.2(c)
313(a)............................................ 6.6
313(b)............................................ 6.6
313(c)............................................ 6.6
313(d)............................................ 6.6
314(a)............................................ 4.3
314(b)............................................ N/A
314(c)(1)......................................... 2.4 and 11.5
314(c)(2)......................................... 2.4 and 11.5
314(c)(3)......................................... N/A
314(d)............................................ N/A
314(e)............................................ 11.5
315(a)............................................ 6.1(b)
315(b)............................................ 6.5
315(c)............................................ 6.1(a)
315(d)(1)......................................... 6.1(b)(1) and (2)
315(d)(2)......................................... 6.1(c)(2)
315(d)(3)......................................... 6.1(c)(3)
315(e)............................................ 5.10
316(a)(1)(A)...................................... 5.8
316(a)(1)(B)...................................... 5.9
316(a)(2)......................................... N/A
316(b)............................................ 5.6
316(c)............................................ 2.7
317(a)(1)......................................... 5.2
317(a)(2)......................................... 5.2
317(b)............................................ 3.2 and 3.3
318(a)............................................ 11.7
</TABLE>
<PAGE>
* This cross reference sheet shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
PARTIES..................................................................... 1
RECITALS.................................................................... 1
Authorization of Indenture............................................. 1
Compliance with Legal Requirements..................................... 1
Purpose of and Consideration for Indenture............................. 1
ARTICLE ONE
DEFINITIONS............................................................ 1
SECTION 1.1 Certain Terms Defined.................................... 1
Attributable Debt................................................. 1
Board of Directors................................................ 2
Business Day...................................................... 2
Commission........................................................ 2
Common Shares..................................................... 2
Company........................................................... 2
Company Notice.................................................... 2
Consolidated Net Tangible Assets.................................. 2
Corporate Trust Office............................................ 3
covenant defeasance............................................... 3
defaulted interest................................................ 3
Depository........................................................ 3
Depository Security............................................... 3
defeasance........................................................ 3
Dollar............................................................ 3
Event of Default.................................................. 3
Funded Debt....................................................... 3
Government Obligations............................................ 4
Holder,........................................................... 4
Holder of Securities,............................................. 4
Indenture......................................................... 4
Officers' Certificate............................................. 4
Opinion of Counsel................................................ 4
Original issue date............................................... 4
Original Issue Discount Security.................................. 4
Outstanding,...................................................... 5
Paying Agent...................................................... 5
Person" or "person................................................ 5
Place of Payment,................................................. 5
Preferred Shares.................................................. 6
principal......................................................... 6
Principal Property................................................ 6
Responsible Officer............................................... 6
Restricted Subsidiary............................................. 6
Sale and leaseback transaction.................................... 6
Security" or "Securities.......................................... 7
Series............................................................ 7
Series of Securities.............................................. 7
Subsidiary........................................................ 7
Trustee........................................................... 7
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
Trust Indenture Act of 1939......................................... 7
TIA................................................................. 7
United States of America............................................ 7
vice president,..................................................... 7
ARTICLE TWO
SECURITIES............................................................... 7
SECTION 2.1 Forms Generally........................................... 7
SECTION 2.2 Form of Trustee's Certificate of Authentication........... 8
SECTION 2.3 Amount Unlimited; Issuable in Series...................... 8
SECTION 2.4 Authentication and Delivery of Securities.................11
SECTION 2.5 Execution of Securities...................................12
SECTION 2.6 Certificate of Authentication.............................12
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest...............................................13
SECTION 2.8 Registration, Transfer and Exchange.......................14
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities................................................15
SECTION 2.10 Cancellation of Securities; Destruction Thereof...........16
SECTION 2.11 Temporary Securities......................................17
SECTION 2.12 Securities in Global Form.................................17
ARTICLE THREE
COVENANTS OF THE COMPANY.................................................18
SECTION 3.1 Payment of Principal and Interest.........................18
SECTION 3.2 Offices for Payment, etc..................................18
SECTION 3.3 Paying Agents.............................................19
SECTION 3.4 Written Statement to Trustee..............................20
SECTION 3.5 Limitation Upon Liens.....................................20
SECTION 3.6 Limitation Upon Sales and Leasebacks......................22
SECTION 3.7 Waiver of Certain Covenants...............................24
SECTION 3.8 Seniority of Securities...................................24
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE..................................................24
SECTION 4.1 Company to Furnish Trustee Information as to
Names and Addresses of Securityholders...................24
SECTION 4.2 Preservation and Disclosure of Securityholders'
Lists.....................................................25
SECTION 4.3 Reports by the Company....................................26
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT......................................................27
</TABLE>
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<TABLE>
<CAPTION>
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SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default.............................. 27
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee
May Prove Debt........................................... 29
SECTION 5.3 Application of Proceeds.................................. 32
SECTION 5.4 Restoration of Rights on Abandonment of
Proceedings.............................................. 32
SECTION 5.5 Limitations on Suits by Securityholders.................. 32
SECTION 5.6 Unconditional Right of Securityholders to
Institute Certain Suits.................................. 33
SECTION 5.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default........................... 33
SECTION 5.8 Control by Securityholders............................... 34
SECTION 5.9 Waiver of Past Defaults.................................. 34
SECTION 5.10 Right of Court to Require Filing of Undertaking
to Pay Costs............................................. 34
SECTION 5.11 Suits for Enforcement.................................... 35
ARTICLE SIX
CONCERNING THE TRUSTEE.................................................. 35
SECTION 6.1 Duties of Trustee........................................ 35
SECTION 6.2 Rights of Trustee........................................ 36
SECTION 6.3 Individual Rights of Trustee............................. 38
SECTION 6.4 Trustee's Disclaimer..................................... 38
SECTION 6.5 Notice of Defaults....................................... 38
SECTION 6.6 Reports by Trustee to Holders............................ 38
SECTION 6.7 Compensation and Indemnity............................... 39
SECTION 6.8 Replacement of Trustee................................... 40
SECTION 6.9 Successor Trustee by Merger.............................. 40
SECTION 6.10 Eligibility; Disqualification............................ 41
SECTION 6.11 Preferential Collection of Claims Against Company........ 41
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS.......................................... 41
SECTION 7.1 Evidence of Action Taken by Security-holders............. 41
SECTION 7.2 Proof of Execution of Instruments........................ 41
SECTION 7.3 Holders to Be Treated as Owners.......................... 41
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding....... 42
SECTION 7.5 Right of Revocation of Action Taken...................... 42
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES................................................. 43
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders.......................................... 43
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders.......................................... 44
SECTION 8.3 Effect of Supplemental Indenture......................... 45
</TABLE>
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SECTION 8.4 Documents to Be Given to Trustee...................... 45
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures............................... 45
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE............................ 46
SECTION 9.1 Company May Consolidate, etc. on Certain Terms........ 46
SECTION 9.2 Successor Corporation Substituted..................... 46
SECTION 9.3 Opinion of Counsel to Trustee......................... 47
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS............ 47
SECTION 10.1 Satisfaction and Discharge of Indenture............... 47
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities................................. 50
SECTION 10.3 Repayment of Moneys Held by Paying Agent.............. 51
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and
Paying Agent.......................................... 51
SECTION 10.5 Reinstatement of Company's Obligations................ 51
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS............................................. 52
SECTION 11.1 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability........... 52
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders........................... 52
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.. 52
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders....................................... 52
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.................... 53
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays....... 54
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939................................. 54
SECTION 11.8 Illinois Law to Govern................................ 55
SECTION 11.9 Counterparts.......................................... 55
SECTION 11.10 Effect of Headings; Gender............................ 55
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS........................... 55
SECTION 12.1 Applicability of Article.............................. 55
SECTION 12.2 Notice of Redemption; Partial Redemptions............. 55
</TABLE>
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SECTION 12.3 Payment of Securities Called for Redemption . . . . . 57
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. . . . . . . 58
SECTION 12.5 Mandatory and Optional Sinking Fund . . . . . . . . . 58
SECTION 12.6 Repayment at the Option of the Holders. . . . . . . . 60
SECTION 12.7 Conversion Arrangement on Call for Redemption . . . . 60
ARTICLE THIRTEEN
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.1 Applicability of Article. . . . . . . . . . . . . . . 61
SECTION 13.2 Right of Holders to Convert Securities into
Common Shares . . . . . . . . . . . . . . . . . . . . 62
SECTION 13.3 Issuance of Common Shares on Conversions. . . . . . . 63
SECTION 13.4 No Payment or Adjustment for Interest or Dividends. . 63
SECTION 13.5 Adjustment of Conversion Price. . . . . . . . . . . . 64
SECTION 13.6 No Fractional Shares to be Issued . . . . . . . . . . 68
SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. . . . . . . . . . . . . . 68
SECTION 13.8 Notice to Holders of the Securities of a Series Prior
to Taking Certain Types of Action . . . . . . . . . . 69
SECTION 13.9 Covenant to Reserve Shares for Issuance on
Conversion of Securities. . . . . . . . . . . . . . . 70
SECTION 13.10 Compliance with Governmental Requirements . . . . . . 70
SECTION 13.11 Payment of Taxes upon Certificates for Shares
Issued upon Conversion. . . . . . . . . . . . . . . . 71
SECTION 13.12 Trustee's Duties with Respect to Conversion
Provisions. . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.13 Conversion of Securities Into Preferred Stock . . . . 72
</TABLE>
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<PAGE>
THIS INDENTURE, dated as of July 1,1996 between FMC CORPORATION, a
Delaware corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed for the equal and proportionate
benefit of the Holders from time to time of the Securities or of any Series
thereof as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended, or the definitions of which in the Securities Act of 1933, as
amended, are referred to in the Trust Indenture Act of 1939, as amended,
including terms defined therein by reference to the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted at the
time of any computation. The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole, as supplemented and
amended from time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Attributable Debt" shall mean, as of any date upon which a
determination of the amount thereof shall be computed, an amount determined by
multiplying the greater, at the time a sale and
<PAGE>
leaseback transaction was entered into, of (i) the fair value of the property,
plant or facility subject to such arrangement (as determined by the Company) or
(ii) the net proceeds of the sale of such property, plant or facility to the
lender or investor, by a fraction of which the numerator shall be the unexpired
initial term of the lease of such property as of the date of determination of
such computation and of which the denominator shall be the full initial term of
such lease. Attributable Debt shall not include any such arrangement for
financing air, water or noise pollution control facilities or sewage or solid
waste disposal facilities or involving industrial development bonds which are
tax exempt pursuant to Section 103 of the United States Internal Revenue Code of
1986, as amended (or which receive similar tax treatment under any subsequent
amendments thereto or successor laws thereof).
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board or any duly authorized
committee created by that Board.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment, place of publication or place where the
principal corporate trust office of the Trustee is located.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Common Shares" means the shares of common stock, par value $0.10 per
share, of the Company as they exist on the date of this Indenture, or any other
shares of capital stock of the Company into which such shares shall be
reclassified or changed.
"Company" means FMC Corporation, a Delaware corporation, until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Notice" means the confirmation of the Company, signed by an
officer, received by the Trustee, of the terms of the issuance of any
Securities.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by
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<PAGE>
reason of being extendible or renewable), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the books and records of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 311 West Monroe Street, Chicago, Illinois 60606.
"covenant defeasance" has the meaning specified in Section 10.1(B).
"defaulted interest" has the meaning specified in Section 2.7.
"Depository" shall mean, with respect to Securities of any Series for
which the Company shall determine that such Securities will be issued as a
Depository Security, The Depository Trust Company, New York, New York, or
another clearing agency or any successor registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to Sections 2.3
and 2.12.
"Depository Security" shall mean, with respect to any Series of
Securities, a Security executed by the Company and authenticated and delivered
by the Trustee to the Depository or pursuant to the Depository's instruction,
all in accordance with this Indenture and pursuant to a resolution of the Board
of Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depository or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"defeasance" has the meaning specified in Section 10.1(B).
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means all indebtedness, whether or not evidenced by a
bond, debenture, note or similar instrument or agreement, for the repayment of
money borrowed, having a maturity of more than 12 months from the date of its
creation or having a
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<PAGE>
maturity of less than 12 months from the date of its creation but by its terms
being renewable or extendible beyond 12 months from such date at the option of
the borrower. For the purpose of determining "Funded Debt" of any corporation,
there shall be excluded any particular indebtedness if, on or prior to the
maturity thereof, there shall have been deposited with the proper depository in
trust the necessary funds for the payment, redemption or satisfaction of such
indebtedness.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the United States
government or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of such
government, and which are not callable or redeemable at the option of the issuer
thereof.
"Holder," " Holder of Securities," "Registered Holder,"
"Securityholder" or other similar terms mean the Person in whose name at the
time a particular Security is registered in the Security register.
"Indenture" means this instrument as originally executed or as it may
from time to time be amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.3.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the chairman of the Board of Directors or the vice chairman or the
president or any vice president and by the treasurer, the controller, any
assistant treasurer, the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel who may
be an employee of or counsel to the Company and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the statements
provided for in Section 11.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
date set forth as such on such Security.
"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 thereof pursuant to Section 5.1.
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"Outstanding," when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency shall
have been deposited in trust with the Trustee or with any Paying Agent
(other than the Company) or shall have been set aside, segregated and held
in trust by the Company for the holders of such Securities (if the Company
shall act as its own Paying Agent), provided that if such securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Company);
(d) Securities converted into Common Shares or Preferred Shares in
accordance with or as contemplated by this Indenture; and
(e) Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Ten.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
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<PAGE>
"Preferred Shares" means any shares of capital stock issued by the
Company that are entitled to a preference or priority over the Common Shares
upon any distribution of the Company's assets, whether by dividend or upon
liquidation.
"principal," whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" means any manufacturing or processing plant or
facility (other than any pollution control facility) or any mineral producing
property which is located within the continental United States of America and is
owned by the Company or any Subsidiary, whether owned at or acquired after the
date hereof, the gross book value on the books of the Company or such Subsidiary
(without deduction of any depreciation reserve) of which on the date as of which
the determination is being made exceeds 1% of the Consolidated Net Tangible
Assets, except (i) any such property, plant or facility which the Board of
Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an
entirety, (ii) any portion of such property, plant or facility which the Board
of Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an entirety
or (iii) any such property, plant or facility which is financed by industrial
development bonds which are tax exempt pursuant to Section 103 of the United
States Internal Revenue Code of 1986, as amended (or which receive similar tax
treatment under any subsequent amendments thereto or successor laws thereof).
"Responsible Officer" when used with respect to the Trustee shall mean
any officer within the corporate trust department (or any successor department)
of the Trustee including any vice president, assistant vice president,
secretary, assistant secretary, senior trust officer, trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary (other than FMC Gold
Company) (i) substantially all the property of which is located within the
continental United States of America or Canada and (ii) which owns or leases a
Principal Property.
"Sale and leaseback transaction" has the meaning specified in Section
3.6.
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<PAGE>
"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.
"Series" or " Series of Securities" means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors.
"Subsidiary" means (i) a corporation, a majority of whose capital
stock with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the provisions hereof, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act of 1939" or " TIA" (except as otherwise provided
in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this Indenture was originally executed.
"United States of America" means the United States of America
(including the states and the District of Columbia), its territories,
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"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 of "vice president."
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series shall be
substantially in such form (including temporary or definitive global form) as
shall be established by or pursuant to
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a resolution of the Board of Directors 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 (the
provisions of which shall be appropriate to reflect the terms of the Series of
Securities represented thereby) and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authenti-cation. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:________________________________
Authorized Signatory
or
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:________________________________,
as Authentication Agent
By:________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or
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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 title shall
distinguish the Securities of the Series from all other Securities issued
by the Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be
offered for sale to the public;
(4) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable), or the method
or methods of determination thereof, at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(6) the place or places where the principal and interest, if any, on
Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(7) if redeemable, the price or prices at which, the period or periods
within 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;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1
or provable in bankruptcy pursuant to Section 5.2;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series whether pursuant to any sinking fund or
analogous provisions or pursuant to other provisions set forth therein or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid, in whole
or in part;
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(10) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(11) the form of the Securities, including such legends as required by
law or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(12) whether, and under what circumstances, the Securities of any
Series shall be convertible into Securities of any other Series and, if so,
the terms and conditions upon which such conversion will be effected
including the initial conversion price or rate, the conversion period and
other provisions in addition to or in lieu of those described herein;
(13) if other than the Trustee, any trustees, authenticating or Paying
Agents, transfer agents or registrars or any other agents with respect to
the Securities of such Series;
(14) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(15) whether the Securities of such Series are to be issuable in whole
or in part in the form of one or more Depository Securities, and, in such
case, the Depository for such Securities;
(16) the application, if any, of either or both of Section 10.1(B)(ii)
or 10.1(B)(iii) to the Securities of the Series;
(17) the obligation, if any, of the Company to permit the conversion
of the Securities of such Series into the Company's Common Shares or
Preferred Shares (and the class thereof), as the case may be, and the terms
and conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period, any adjustment of the applicable conversion price or rate and any
requirements relative to reservation of shares for purposes of conversion;
and
(18) any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one Series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. All
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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.
SECTION 2.4 Authentication and Delivery of 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, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the written order of the
Company, signed by both (a) the chairman of its Board of Directors, or its
president or any vice president and (b) its treasurer or any assistant
treasurer, secretary or any assistant secretary without any further action by
the Company. 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 6.1) shall be fully
protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(2) a supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5; and
(4) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and in conformity
with such resolution; and
(b) that such Securities have been duly authorized, and, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such opinion
of counsel, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
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The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under this Indenture in a manner not reasonably acceptable to the
Trustee.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Company by both (a) the chairman of its Board of Directors or
its president or any vice president and (b) its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, and
for all purposes of the Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of the Indenture.
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SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as shall be
specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof, and
interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Securities shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Company
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Each Security shall be dated the date of its authentication.
Unless otherwise provided as contemplated by Section 2.3, 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 the payment of such interest.
The term "regular record date" as used with respect to any interest
payment date (except for a date for payment of defaulted interest) shall mean
the date specified as such in the terms of the Securities of any particular
Series, or, if no such date is so specified, the close of business on the
fifteenth day preceding such interest payment date, whether or not such record
date is a Business Day.
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 (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
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 clause (2) below:
(1) The Company may elect to make payment of any defaulted interest
to the persons in whose names any such Securities (or their respective
predecessor Securities) are registered at the close of business on a
special record date for the payment of such defaulted interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each
Security of such Series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed
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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 in respect of Securities of such Series which shall
be not more than 15 nor 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 thereof to be mailed, first class
postage prepaid, to each Registered Holder at his address as it appears in
the Security register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such defaulted interest and the
special record date therefor having been mailed as aforesaid, such
defaulted interest in respect of Securities of such Series shall be paid to
the persons in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series 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 payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange. The Company will
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration, and the registration of the transfer, of the Securities. The
Trustee is hereby appointed Security registrar for purposes of registering, and
registering transfers of, the Securities.
Upon surrender for registration of transfer of any Security of any
Series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
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Security or Securities of the same Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for registration of transfer
or 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 Trustee 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 transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a 15-day period prior to the day of mailing
of the relevant notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not
redeemed.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
or be destroyed, lost or stolen, the Company shall execute, and upon the written
request of any officer of the Company, the Trustee shall authenticate and make
available for delivery a new Security of the same Series and of like tenor and
principal amount and with the same terms and conditions, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Company and to the Trustee and to any agent of the Company or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
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Upon the issuance of any substitute Security, 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. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security); provided, however, that unless otherwise provided pursuant
to Section 2.3, the applicant for such payment shall furnish to the Company and
to the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any Series issued pursuant to the
provisions of this Section by virtue of the fact that any Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such Series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Company or any agent of the Company or the
Trustee, be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold and all Securities so delivered shall be promptly cancelled by
the Trustee. The Trustee shall return cancelled Securities held by it to the
Company. If the Company shall acquire any of the Securities, such acquisition
shall not
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operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series may be issued of any authorized denomination, and substantially in the
form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities of such Series a like aggregate
principal amount of definitive Securities of the same Series of authorized
denominations. Until so exchanged, the temporary Securities of any Series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such Series.
SECTION 2.12 Securities in Global Form. If Securities of a Series are
issuable in global form, as specified as contemplated by Section 2.3, then,
notwithstanding clause (10) of Section 2.3 and the provisions of Section 2.7,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby may be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the company order to be delivered to the Trustee
pursuant to Section 2.4. Subject to the provisions of Section 2.4, the Trustee
shall deliver and redeliver any Security in definitive global form in the manner
and upon written instructions given by the Person or Persons specified therein
or in the applicable company order. If a company order pursuant to Section 2.4
has been, or simultaneously is, delivered,
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any instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 11.5 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.6 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 2.6.
Notwithstanding the provisions of Sections 2.3 and 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat a Person as the
Holder of such principal amount of outstanding Securities represented by a
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security.
ARTICLE THREE
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants
and agrees for the benefit of each particular Series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such Series in accordance with the terms of the
Securities of such Series and this Indenture.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series: an
office or agency (a) where the Securities may be presented for payment or
conversion, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, and (c) where notices
and demands to or upon the Company in respect of the Securities or of this
Indenture may be served. The Company will give to the Trustee written notice of
the location of any such office or agency and of any change of location thereof.
In case the Company shall fail to so designate or maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise
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specified pursuant to Section 2.3, the Trustee is hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company or by any other obligor
on the Securities of such Series) in trust for the benefit of the Holders of the
Securities of such Series or of the Trustee, and upon the occurrence of an Event
of Default and upon the written request of the Trustee, pay over all such sums
received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such Series when the same
shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such Series by the Company or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
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SECTION 3.4 Written Statement to Trustee. 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, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
SECTION 3.5 Limitation Upon Liens. So long as any Securities of any
Series have been issued and remain Outstanding, the Company will not itself, and
will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee
any indebtedness, whether or not evidenced by notes, bonds, debentures or other
similar instruments for money borrowed (being hereinafter in this Section 3.5
and Section 3.6 called "Debt"), secured by pledge of, or mortgage or other lien
(including lease purchase, installment purchase and other title retention
financing arrangements) on or in respect of any Principal Property owned by the
Company or any Restricted Subsidiary, or on any shares of stock or Debt of any
Restricted Subsidiary (such pledges, mortgages and other liens being hereinafter
in this Section 3.5 and in Section 3.6 called "Liens"), without effectively
providing that the Securities (together with, if the Company shall so determine,
any other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt (for the purpose of
providing such equal and ratable security, the principal amount of any
Securities which are Original Issue Discount Securities shall mean and shall not
be less than that principal amount which could be declared to be due and payable
pursuant to Section 5.1 on the date of the making of such effective provision,
and the extent of such equal and ratable security shall be adjusted to the
extent permitted by law, as and when said principal amount changes over time
pursuant to Section 5.1 and any other provision hereof), so long as such secured
Debt shall be so secured, unless, after giving effect thereto, the aggregate
principal amount of all such secured Debt then outstanding plus all Attributable
Debt of the Company and its Restricted Subsidiaries in respect of sale and
leaseback transactions (as defined in Section 3.6) entered into after the date
of the first issuance of any Securities of such Series under this Indenture
(other than sale and leaseback transactions permitted by Section 3.6(b)) would
not exceed an amount equal to 10% of Consolidated Net Tangible Assets; provided,
however, that nothing contained in this Section shall prevent, restrict or apply
to, and there shall be excluded from secured Debt in any computation under this
Section, Debt secured by:
(a) With respect to each Series of Securities, Liens existing as of
the date of the issuance of Securities of such
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Series on any property or assets owned or leased by the Company or any
Restricted Subsidiary;
(b) Liens on property or assets of, or on any shares of stock or Debt
of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(c) Liens on any property or assets or shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any Debt incurred
prior to, at the time of or within 120 days after the later of acquisition
of such property or assets or shares of stock or Debt or the completion of
any such construction and the commencement of operation of such property,
for the purpose of financing all or any part of the purchase price or
construction cost thereof;
(d) Liens on any property or assets to secure all or any part of the
cost of development, operation, construction, alteration, repair or
improvement of all or any part of such property or assets, or to secure
Debt incurred prior to, at the time of or within 120 days after the
completion of such development, operation, construction, alteration, repair
or improvement, whichever is later, for the purpose of financing all or any
part of such cost;
(e) Liens in favor of, or which secure Debt owing to, the Company or a
Restricted Subsidiary;
(f) Liens arising from the assignment of moneys due and to become due
under contracts between the Company or any Restricted Subsidiary and the
United States of America, any State, Territory or possession thereof or any
agency, department, instrumentality or political subdivision of any
thereof; or Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department,
instrumentality or political subdivision of any thereof, to secure
progress, advance or other payments pursuant to any contract or provision
of any statute, or pursuant to the provisions of any contract not directly
or indirectly in connection with securing Debt;
(g) any deposit or pledge as security for the performance of any bid,
tender, contract, lease or undertaking not directly or indirectly in
connection with the securing of Debt; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Restricted Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to worker's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or
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discharge in any legal or administrative proceedings; deposits or pledges
to obtain the release of mechanics', worker's, repairmen's, materialmen's
or warehousemen's liens on the release of property in the possession of a
common carrier; any security interest created in connection with the sale,
discount or guarantee of notes, chattel mortgages, leases, accounts
receivable, trade acceptances or other paper, or contingent repurchase
obligations, arising out of sales of merchandise in the ordinary course of
business; liens for taxes not yet due and payable or being contested in
good faith; or other deposits or pledges similar to those referred to in
this subparagraph (g);
(h) Liens arising by reason of any attachment, judgment, decree or
order of any court or other governmental authority, so long as any
appropriate legal proceedings which may have been initiated for review of
such attachment, judgment, decree or order shall not have been finally
terminated or so long as the period within which such proceedings may be
initiated shall not have expired;
(i) Liens created after the date of this Indenture on property leased
to or purchased by the Company or any Restricted Subsidiary after that date
and securing, directly or indirectly, obligations issued by a State, a
Territory or a possession of the United States of America, or any political
subdivision of any of the foregoing, or the District of Columbia, to
finance the cost of acquisition or cost of construction of such property;
and
(j) any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), as a whole or in
part, of any Lien referred to in subparagraphs (a) through (i) above or the
Debt secured thereby; provided that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on such
property and any other property or assets not then constituting a Principal
Property) and (2) to the extent, if any, that the Debt secured by such Lien
at such time is increased, the amount of such increase shall not be
excluded from secured Debt under any computation under this Section.
Debt created by the Company or any Restricted Subsidiary shall not be
cumulated with a guarantee of the same Debt by the Company or any other
Restricted Subsidiary for the same financial obligation.
SECTION 3.6 Limitation Upon Sales and Leasebacks. As long as any
Securities of a Series have been issued and are Outstanding, the Company will
not itself, and will not permit any
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Restricted Subsidiary to, enter into any arrangement after the date of this
Indenture with any bank, insurance company or other lender or investor (not
including the Company or any Restricted Subsidiary) providing for the leasing by
the Company or any such Restricted Subsidiary for a period, including renewals,
in excess of three years of any Principal Property which was or is owned by the
Company or such Restricted Subsidiary which has been or is to be sold or
transferred, more than 120 days after such property has been owned by the
Company or such Restricted Subsidiary and completion of construction and
commencement of full operation thereof, 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:
(a) The Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such sale and leaseback transaction and all
other sale and leaseback transactions entered into after the date of the
first issuance of any Securities of such Series (other than sale and
leaseback transactions permitted by Section 3.6(b))plus the aggregate
principal amount of Debt secured by Liens on Principal Properties then
outstanding (excluding any such Debt secured by Liens covered in
subparagraphs (a) through (j) of the first paragraph of Section 3.5)
without equally and ratably securing the Securities of any Series then
outstanding, would not exceed 10% of Consolidated Net Tangible Assets, or
(b) The Company, within 120 days after the sale or transfer, applies
an amount equal to the value of the Principal Property so sold and leased
back at the time of entering into such arrangement (as determined by the
Company) to (x) the retirement of Funded Debt (including Securities of any
Series constituting Funded Debt) of the Company (and any redemption of
Securities of any Series pursuant to this provision shall, if provided in
the terms of such particular Series of Securities, not be deemed to
constitute a refunding operation or anticipated refunding operation
pursuant to any redemption provision of such Series otherwise prohibiting
redemption when such would constitute a refunding operation or anticipated
refunding operation) or (y) the acquisition of properties, facilities or
equipment used for general operating purposes for the Company or any
Restricted Subsidiary; provided, that the amount to be applied to the
retirement of Funded Debt of the Company pursuant to this subparagraph (b)
shall be reduced by (i) the principal amount of any Securities (the
principal amount of any Securities which are Original Issue Discount
Securities shall mean and shall not be less than that principal amount
which could then be declared to be due and payable pursuant to Section 5.1)
delivered within 120 days after such sale or transfer to the Trustee for
redemption and cancellation, and (ii) the principal amount of Funded Debt
(similarly determined with respect to Funded Debt that would
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constitute an Original Issue Discount Security within the meaning of this
Indenture), other than Securities, voluntarily retired by the Company
within 120 days after such sale, whether or not any such retirement of
Funded Debt covered by subclause (i) or (ii) above shall be specified as
being made pursuant to this subparagraph (b). Notwithstanding the
foregoing, no retirement referred to in this subparagraph (b) may be
effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any sale and leaseback transaction, Attributable
Debt shall not include any Debt resulting from the guarantee by the Company or
any other Restricted Subsidiary of the lessee's obligation thereunder.
SECTION 3.7 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 3.5 or 3.6 with respect to the Securities of any Series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such Series shall either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 3.8 Seniority of Securities. The Company covenants and agrees
that the indebtedness represented by the Securities is hereby expressly made
senior to any indebtedness represented by any securities now outstanding or ever
issued or to be issued pursuant to the Fiscal Agency Agreement, dated as of
January 16, 1990, between the Company and Union Bank of Switzerland, as fiscal
agent, or any amendment or supplement thereto.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each Series:
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(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such Series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Security-holders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each Series of Securities contained in the most recent list furnished to it as
provided in Section 4.1 or maintained by the Trustee in its capacity as Security
registrar for such Series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which
case the applicants must all hold Securities of such Series) or with Holders of
all Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such Series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
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If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Securities, as the
case may be, whose name and address appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such Series or all Securities, as the case may
be, or could be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of such order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and 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 the Company or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, or if the Company is not
required to file information, documents, or reports pursuant to either of
such
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Sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents, and reports
which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any Series wherever
used herein, means any one of the following events which shall have occurred and
be continuing (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) unless it is either inapplicable to
a particular Series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or resolution of the Board of Directors establishing
such Series of Securities or in the form of Security for such Series:
(a) default in the payment of any installment of interest upon any of
the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when
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the same shall become due and payable, either at maturity, upon any
redemption, by declaration or otherwise; or
(c) default in the performance or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in the performance
of which or breach of which is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of a Series 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 principal
amount of the Outstanding Securities of that Series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in eff ect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors; or
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(f) any other Event of Default provided with respect to Securities of
such Series in the supplemental indenture or resolution of the Board of
Directors establishing such Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount at maturity of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Holders), may declare the principal of all the Securities of such Series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. This provision, however, is
subject to the condition that if at any time after the principal of the
Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such Series and the principal of
any and all Securities of such Series which shall have become due otherwise than
by such acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Securities of such Series to
the date of such payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and all other expenses and liabilities incurred, and all
advances made, by the Trustee, its agents, attorneys and counsel and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such Series which shall have become due by such acceleration,
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount at maturity of the Securities of such Series then
Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May
Prove Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity of
the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon
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demand of the Trustee for the Securities of such Series, the Company will pay to
the Trustee for the Securities of such Series for the benefit of the Holders of
the Securities of such Series the whole amount that then shall have become due
and payable on all Securities of such Series for principal of or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest specified in the Securities of such Series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to, and all expenses
and liabilities incurred and all advances made by, the Trustee and each
predecessor Trustee and their respective agents, attorneys and counsel.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed (or by declaration or otherwise, and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
Series, and to file such other papers
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or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable compensation to, and all
expenses and liabilities incurred and all advances made by, the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel) and of the Securityholders allowed in any judicial proceedings
relative to the Company or other obligor upon all Securities of any Series,
or to the creditors or property of the Company or such other obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Holders to make payments to
the Trustee for the Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to such Trustee such amounts as shall be sufficient
to cover reasonable compensation to, and all expenses and liabilities
incurred and all advances made by, such Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel and all other amounts
due to such Trustee or any predecessor Trustee pursuant to Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee for the Securities
of such Series without the possession of any of the Securities of such Series or
the production thereof at any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities in respect of which such
action
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was taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect of
the Securities of any series shall be applied in the following order at the date
or dates fixed by such Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several Securities
in respect of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series in reduced
principal amounts in exchange for the presented Securities of like Series if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective
agents and attorneys and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities of such Series in respect of
which moneys have been collected, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference, according
to the amounts then due and payable on such Securities for principal and
interest; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Securities of any Series shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case, subject to the
determination in any such proceeding, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of
any Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other
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remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then Outstanding
shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee indemnity reasonable to it as it may require, against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
during such 60-day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; it being understood and intended,
and being expressly covenanted by the taker and Holder of every Security with
every other taker and Holder of a Security and the Trustee, that no one or more
Holders of Securities of any Series shall have any right in any manner whatever,
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other such Holder of Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of the
applicable Series.
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and (subject to Section 2.7) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.9 and Section 5.5, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any
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such Event of Default or an acquiescence therein; and, subject to Section 5.5,
every power and remedy given by this Indenture or by law to the Trustee or to
the Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that the Trustee shall
have the right to decline to follow any such direction if the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series
so affected not joining in the giving of said direction, it being understood
that the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
SECTION 5.9 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of such Series at the time
outstanding may on behalf of the Holders of all the Securities of such Series
waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security, by
his acceptance thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made
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by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders of any Series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with
respect to the Securities of any Series, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any Series:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into the document 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 any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, 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
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examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) No provision of this Indenture shall require the Trustee to
extend or risk its own funds or otherwise incur any financial liability unless
it receives indemnity satisfactory to it against any loss, liability or expense.
(f) 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 in writing with the Company.
SECTION 6.2 Rights of Trustee.
(a) The Trustee may rely, and shall be protected in relying, upon on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
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(d) Before the Trustee acts or refrains from acting the Trustee may
consult with counsel of its selection 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 in accordance with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee indemnity reasonable to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction.
(f) 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.
(g) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, Officer's Certificate, or other certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the Holders or not less than a majority in aggregate
principal amount of the Securities then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Company or, if advanced by the Trustee, shall be repaid by the Company upon
demand.
(h) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
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(j) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(k) except for (i) a default under Sections 5.1(a) or (b) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or event unless specifically notified in
writing of such event by the Company or the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding; as used herein, the
term "actual knowledge" means the actual fact or statement of knowing, without
any duty to make any investigation with regard thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, registrar or co-
registrar may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, it
shall not be responsible for any statement in the registration statement for the
Securities under the Securities Act of 1933, as amended, or in the Indenture or
the Securities (other than its certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing
with respect to any Securities of any Series and if the Trustee has actual
knowledge of such default, the Trustee shall give to each Securityholder of such
Series notice of the default within 90 days after such default occurs. Except in
the case of a default described in Section 5.1(a) or (b), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
July 1 beginning with the July 1 following the date of this Indenture, the
Trustee shall mail to each Securityholder of any Series and each other person
specified in TIA Section 313(c) a brief report dated as of such July 1 that
complies with TIA Section 313(a) to the extent required thereby. The Trustee
also shall comply with TIA Section 313(b).
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A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the Commission and each securities exchange on
which the Securities of any Series are listed. The Company agrees promptly to
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, in Dollars such compensation as shall be agreed to in writing
between the Company and the Trustee 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);
(b) 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, advances and disbursements of its agents and
counsel), except to the extent any such expense, disbursement or advance
may be attributable to its negligence or willful misconduct; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of this trust or the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to
the extent that any such loss, liability or expense may be attributable to
its negligence or willful misconduct.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
default specified in Sections 5.1(d) and 5.1(e), such expenses (including
reasonable
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fees and expenses of its counsel) are intended to constitute expenses of
administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any
time with respect to Securities of one or more Series by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 6.8. The
Holders of a majority in aggregate principal amount of the Outstanding
Securities of any Series may remove the Trustee with respect to such Series at
the time outstanding by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such Series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers
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all or substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. Neither the Company nor any person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee hereunder. The Trustee shall comply with TIA
Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
(b) The ownership of Securities shall be proved by the Security
register.
SECTION 7.2 Proof of Execution of Instruments. Subject to Sections
6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the Trustee
and any agent of the Company or the Trustee
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may deem and treat the person in whose name any Security shall be registered
upon the Security register for such Series as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and interest on such Security and
for all other purposes; and neither the Company nor the Trustee nor any agent of
the Company or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are 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
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of
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the percentage in aggregate principal amount of the Securities of any or all
Series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Nine;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series and, if such additional covenants are to be
for the benefit of less than all the Series of Securities, stating that
such covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not materially and adversely affect the interests of the
Holders of the Securities;
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.1 and 2.3; or
(f) 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
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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
the one Trustee, pursuant to the requirements of Section 6.8.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of securityholders as aforesaid and other documents, if any,
required
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by Section 7.1, the Trustee for such Series of Securities shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects such Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case such Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Security register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities of any Series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such
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supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such Series then
outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc. on Certain Terms. The
Company may consolidate with, or sell, convey or lease all or substantially all
of its assets to, or merge with or into, any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be organized and validly existing under the laws
of the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the securities according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in material default in the performance or
observance of any such covenant or condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authen ticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in
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substance) may be made in the Securities thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance the Company (or any
successor corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company shall have paid or caused to be
paid the principal of and interest on all the Securities of any Series
Outstanding hereunder (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of any Series
theretofore authenticated (other than any Securities of such Series which have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) (i) all the Securities of such Series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient to pay at maturity or upon redemption
all Securities of such Series (other than any Securities of such Series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such date
of maturity as the case may be, and if, in any such case, the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with
respect to Securities of such Series, then this Indenture shall cease to be of
further
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effect with respect to Securities of such Series (except as to (i) rights of
registration of transfer and exchange, and the Company's right of optional
redemption (provided the Company provides sufficient funds to effect such
optional redemption), (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities, (iii) rights of Holders to receive payments of principal
thereof and interest thereon upon the original stated due dates therefor (but
not upon acceleration) and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder and (v) the rights of the Securityholders of such Series
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and, subject to Section 10.5, the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such Series; provided, that the rights of Holders of
the Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by then-
applicable mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Company agrees to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture and the Securities of such Series.
(B) (i) In addition to the provisions of Section 10.1(A), the
Company may, at its option by or pursuant to, or otherwise in a manner or by
such Persons as may be authorized pursuant to, one or more resolutions duly
adopted by the Board of Directors, at any time with respect to the Securities of
any Series, elect to have defeasance under subsection (ii) or covenant
defeasance under subsection (iii) of this Section 10.1(B) be applied to the
Outstanding Securities of such Series provided that provision therefor is made
for such application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(B) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in
Section 10.1(B)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders of
Outstanding
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Securities of such Series to receive payments in respect of the principal of and
interest on such Securities when such payments are due, (2) the Company's
obligations with respect to such Securities under Sections 2.8, 2.9, 3.2, 6.7,
10.4 and 10.5, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and (4) this Section 10.1(B).
(iii) Upon the Company's exercise of the option referenced in
Section 10.1(B)(i) applicable to this subsection, the Company shall be released
from its obligations under Sections 3.5 and 3.6 with respect to the Outstanding
Securities of such Series on and after the date the conditions set forth below
are satisfied (hereinafter "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such Series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document (including, without limitation, the
form of Securities of such Series), but the remainder of this Indenture and the
rights of each Holder of such Securities shall be unaffected thereby.
(iv) The following shall be the conditions to the application
of Section 10.1(B) (ii) or (iii) to the Outstanding Securities of such Series:
(1) The Company shall have irrevocably deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.10 who shall agree to comply with the
provisions of this Section 10.1(B) applicable to it) under the terms
of an irrevocable trust agreement, as trust funds in trust solely for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Securities of such Series, (I) cash in the currency or currency unit
required, or (II) Government Obligations maturing as to principal and
interest in such amounts (payable in the currency in which the
Securities of such Series are payable) and at such times as are
sufficient, to pay the principal of and interest on the Outstanding
Securities of such Series to maturity or redemption, as the case may
be, or (III) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of and each installment of principal of and interest, if
any, on the Outstanding Securities of such Series on the stated
maturity of such
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principal or installment of principal or interest, if any, and (y) any
mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such Series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities. Such irrevocable trust agreement
shall include, among other things, (a) provision for the payments
referenced in clauses (x) and (y) of the immediately preceding
sentence, (b) the payment of the reasonable expenses of the Trustee
incurred or to be incurred in connection with carrying out such trust
provisions, (c) rights of registration, transfer, substitution and
exchange of Securities of such Series in accordance with the terms
stated in this Indenture and (d) continuation of the rights and
obligations and immunities of the Trustee as against the Holders of
Securities of such Series as stated in this Indenture.
(2) No Event of Default or event which with notice or lapse of
time or both would constitute an Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 5.1(d) and 5.1(e) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by
which it is bound.
(4) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Securityholders of such Series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same
time as would have been the case if such deposit and defeasance or
covenant defeasance, as the case may be, had not occurred.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the deposit and
defeasance or covenant defeasance, as the case may be, contemplated by
this Section 10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys
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deposited with the Trustee pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Holders of the
particular Securities of such Series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated from
other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, promptly be repaid to the
Company by the Trustee for such Series or such Paying Agent (except that with
respect to any amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and the Holder of
the Security of such Series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease. Anything in this Article Ten to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the written request of the Company any money or
Government Obligations held by it as provided in Section 10.1(B)(iv) 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 such defeasance or covenant defeasance, as the case may be, in accordance
with the provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee
is unable to apply any funds or Government Obligations in accordance with
Section 10.1 by reason of any legal proceeding or by reason of any order or
judgment of any court or
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governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this indenture and the Securities
of any Series for which such application is prohibited shall be revived and
reinstated as if no deposit had occurred pursuant to Section 10.1 until such
time as the Trustee is permitted to apply all such funds or Government
Obligations in accordance with Section 10.1; provided, however, that if the
Company has made any payment of interest on or principal of any of such
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment from the funds or Government Obligations held by the Trustee.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-
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class mail (except as otherwise specifically provided herein) addressed (until
another address of the Company is filed by the Company with the Trustee) to FMC
Corporation, 200 East Randolph Drive, Chicago, Illinois 60601, Attention:
Corporate Secretary. Any notice, direction, request or demand by the Company or
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid, to such Holders
as their names and addresses appear in the Security register within the time
prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder, shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that, in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or
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opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Any certificate, statement 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 that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture which is required by
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the Trust Indenture Act of 1939, as amended, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act of 1939, as amended, that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 11.8 Illinois Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the internal laws of the State
of Illinois (without regard to conflicts of laws provisions thereof), and for
all purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed or
to be redeemed as a whole or in part at the option of the Company shall be given
by giving notice of such redemption as provided in Section 11.4, at least 15
days and not more than forty-five days prior to the date fixed for redemption,
to such Holders of Securities of such Series. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a Series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the
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case, that interest accrued to the date fixed for redemption will be paid as
specified in such notice, that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue and, if applicable, that a
Holder of Securities who desires to convert Securities for redemption must
satisfy the requirements for conversion contained in such Securities, the then
existing conversion price or rate and the date and time when the option to
convert shall expire. If less than all of the Securities of any Series are to
be redeemed, the notice of redemption shall specify the numbers of the
Securities of such Series to be redeemed. In case any Security of a Series is
to be redeemed in part, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such Series in principal amount equal to the unredeemed Portion
thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at
the option 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. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least forty-five days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 3
Business Days prior to the date such notice is given to such Holders, but in any
event at least 15 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 3.4) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed, the Company
will deliver to the Trustee at least forty-five days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
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However, if less than all the Securities of any Series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular securities to be redeemed and
shall notify the Trustee in writing thereof at least forty-five days prior to
the relevant redemption date. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any Series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemp-tion. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and, except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that if for any Securities
the date fixed for redemption is a regular interest payment date, payment of
interest becoming due on such date shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
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SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. 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." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee a written statement (which need not contain the statements required by
Section 11.5) signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
(except as otherwise specified pursuant to Section 2.3 for the Securities of
such Series), and the portion to be satisfied by delivery or credit of
Securities of such Series, (b) stating that none of the Securities of such
Series for which credit is sought has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect to
such Series have occurred (which have not been waived or cured) and are
continuing, (d) stating whether or not the Company intends to
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exercise its right to make an optional sinking fund payment with respect to such
Series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date and (e) specifying such sinking fund payment date. Any Securities
of such Series to be credited and required to be delivered on the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written
statement. Such written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such Series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such Series in respect thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 (or a lesser sum if the Company shall so request) with respect
to the Securities of any particular Series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such Series at the sinking fund redemption price together with accrued interest,
if any, to the date fixed for redemption. If such amount shall be $100,000 or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Company
(or the Company, if it shall so notify the Trustee in writing), shall cause
notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such payment,
shall be applied in
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accordance with the provisions of this Section. Any and all sinking fund moneys
held on the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such Series, shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such Series at maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.9 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of
any Series which are repayable at the option of the Holders thereof before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their stated
maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same
to the Trustee with a directive that such Securities be cancelled.
SECTION 12.7 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any
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Securities called for redemption by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Trustee
or the Paying Agent in trust for the Holders of Securities, on or before 10:00
a.m. Chicago time on the redemption date, an amount not less than the redemption
price, together with interest, if any, accrued to the redemption date of such
Securities, in immediately available funds. Notwithstanding anything to the
contrary contained in this Article Twelve, the obligation of the Company to pay
the redemption price of such Securities, including all accrued interest, if any,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, any Securities
not duly surrendered for conversion by the Holders thereof may, at the option of
the Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the Paying
Agent shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it in the same manner as it would pay moneys
deposited with it by the Company for the redemption of Securities. Without the
Trustee's and the Paying Agent's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee and the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Trustee and the
Paying Agent from, and hold them harmless against, any loss, liability or
expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee and the
Paying Agent (including the fees and expenses of their agents and counsel) in
the defense of any claim or liability arising out of or in connection with the
exercise or performance of any of their powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article. Securities of any Series which
are convertible into Common Shares at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.3 for the Securities of any
Series) in accordance with this Article. Each reference in this Article Thirteen
to "a Security" or "the Securities" refers to the Securities of the particular
Series that is convertible into Common Shares. If more
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than one Series of Securities with conversion privileges are Outstanding at any
time, the provisions of this Article Thirteen shall be applied separately to
each such Series.
SECTION 13.2 Right of Holders to Convert Securities into Common
Shares. Subject to and upon compliance with the terms of the Securities and the
provisions of Section 12.7 and this Article Thirteen, at the option of the
Holder thereof, any Security of any Series of any authorized denomination which
is convertible into Common Shares, or any portion of the principal amount
thereof which is $1,000 or any integral multiple of $1,000, may, at any time
during the period specified in the Securities of such Series, or in case such
Security or portion thereof shall have been called for redemption, then in
respect of such Security or portion thereof until and including, but not after
(unless the Company shall default in payment due upon the redemption thereof)
the close of business on the redemption date (except that in the case of
repayment at the option of the Holder, if specified in the terms of the relevant
Security, such right shall terminate upon the Company's receipt of written
notice of the exercise of such option), be converted into duly authorized,
validly issued, fully paid and nonassessable Common Shares, as specified in such
Security, at the conversion price or conversion rate for each $1,000 principal
amount of Securities (such initial conversion rate reflecting an initial
conversion price specified in such Security) in effect on the conversion date,
or, in case an adjustment in the conversion price has taken place pursuant to
the provisions of this Article Thirteen, then at the applicable conversion price
as so adjusted, upon surrender of the Security or Securities, the principal
amount of which is so to be converted, to the Company at any time during usual
business hours at the office or agency to be maintained by it in accordance with
the provisions of Section 3.2, accompanied by a written notice of election to
convert as provided in Section 13.3 and, if the Holder requests that the Common
Shares be registered in a name other than that of the Holder, by a written
instrument or instruments of transfer in form satisfactory to the Company and/or
the Trustee, as applicable, duly executed by the Holder thereof or his attorney
duly authorized in writing. All Securities surrendered for conversion shall, if
surrendered to the Company or any conversion agent, be delivered to the Trustee
for cancellation and cancelled by it, or shall, if surrendered to the Trustee,
be cancelled by it, as provided in Section 2.10.
The initial conversion price or conversion rate in respect of a Series
of Securities shall be as specified in the Securities of such Series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.5 or such other or different terms, if any, as may be
specified by Section 2.3 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
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SECTION 13.3 Issuance of Common Shares on Conversions. As promptly as
practicable after the surrender, as herein provided, of any Security or
Securities for conversion into Common Shares, the Company shall deliver or cause
to be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable Common Shares into which such Security or Securities may
be converted in accordance with the terms thereof and the provisions of this
Article Thirteen. Prior to delivery of such certificate or certificates, the
Company shall require written notice at its said office or agency from the
Holder of the Security or Securities so surrendered stating that the Holder
irrevocably elects to convert such Security or Securities, or, if less than the
entire principal amount thereof is to be converted, stating the portion thereof
to be converted. Such notice shall also state the name or names (with address
and social security or other taxpayer identification number) in which said
certificate or certificates are to be issued. Such conversion shall be deemed to
have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the
Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the Person or Persons entitled to receive
the Common Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become either record holder or holders of
such Common Shares at such time and such conversion shall be at the conversion
price in effect at such time. In the case of any Security of any Series which is
converted in part only, upon such conversion, the Company shall execute and,
upon the Company's request and at the Company's expense, the Trustee or an
authenticating agent shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such Series of
authorized denominations in aggregate principal amount equal to the unconverted
portion of such Security.
If the last day on which such Security may be converted is not a
Business Day in a place where the conversion agent for that Security is located,
such Security may be surrendered to that conversion agent on the next succeeding
day that is a Business Day.
The Company shall not be required to deliver certificates for Common
Shares upon conversion while its stock transfer books are closed for a meeting
of shareholders or for the payment of dividends or for any other purpose, but
certificates for Common Shares shall be delivered as soon as the stock transfer
books shall again be opened.
SECTION 13.4 No Payment or Adjustment for Interest or Dividends.
Unless otherwise specified as contemplated by Section 2.3 for Securities of such
Series, Securities surrendered for conversion into Common Shares during the
period from the close of business on any regular record date (or special record
date) next
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preceding any interest payment date to the opening of business on such interest
payment date (except Securities called for redemption on a redemption date
within such period) when surrendered for conversion must be accompanied by
payment (by certified or official bank check to the order of the Company payable
in clearing house funds at the location where the Securities are surrendered) of
an amount equal to the interest thereon which the Holder is entitled to receive
on such interest payment date. Payment of interest shall be made, on such
interest payment date or such other payment date (as set forth in Section 2.7),
as the case may be, to the Holder of the Securities as of such regular record
date or special record date, as applicable. Except where Securities surrendered
for conversion must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Company on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Original Issue Discount Security, the fixed
number of Common Shares into which such Security is convertible delivered by the
Company to the Holder thereof shall be applied, first, to the portion
attributable to the accrued original issue discount relating to the period from
the date of issuance to the date of conversion of such Security, and, second, to
the portion attributable to the balance of the principal amount of such
Security.
SECTION 13.5 Adjustment of Conversion Price. Unless otherwise
specified as contemplated by Section 2.3 for Securities of such Series, the
conversion price for Securities convertible into Common Shares shall be adjusted
from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Shares in Common Shares, (y) subdivide the
outstanding Common Shares into a greater number of shares or (z) combine
the outstanding Common Shares into a smaller number of shares, the
conversion price for the Securities of such Series shall be adjusted so
that the Holder of any such Security thereafter surrendered for conversion
shall be entitled to receive the number of Common Shares which he would
have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately
prior to the record date in the case of a dividend or the effective date in
the case of subdivision or combination. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend, except as provided in subsection (h) below, and
shall become effective immediately after the effective date in the case of
a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders
of Common Shares entitling them (for a period expiring within 45 days after
the record date mentioned below)
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to subscribe for or purchase Common Shares at a price per share less than
the current market price per share of Common Shares (as defined for
purposes of this subsection (b) in subsection (e) below), at the record
date for the determination of stockholders entitled to receive such rights
or warrants, the conversion price in effect immediately prior thereto shall
be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number of Common
Shares outstanding on such record date plus the number of Common Shares
which the aggregate offering price of the total number of Common Shares so
offered would purchase at such current market price, and the denominator of
which shall be the number of Common Shares outstanding on such record date
plus the number of additional Common Shares receivable upon exercise of
such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subsection (h) below, after such record
date. In determining whether any rights or warrants entitle the Holders of
the Securities of such Series to subscribe for or purchase Common Shares at
less than such current market price, and in determining the aggregate
offering price of such Common Shares, there shall be taken into account any
consideration received by the Company for such rights or warrants plus the
exercise price thereof, the value of such consideration or exercise price,
as the case may be, if other than cash, to be determined by the Board of
Directors.
(c) In case the Company shall distribute to all holders of Common
Shares any shares of capital stock of the Company (other than Common
Shares) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of the Company) or
rights or warrants to subscribe for or purchase any of its securities
(excluding those rights or warrants referred to in subsection (b) above)
(any of the foregoing being herein in this subsection (c) called the
"Special Securities"), then, in each such case, unless the Company elects
to reserve such Special Securities for distribution to the Holders of
Securities of such Series upon the conversion so that any such Holder
converting such Securities will receive upon such conversion, in addition
to the Common Shares to which such Holder is entitled, the amount and kind
of Special Securities which such Holder would have received if such Holder
had, immediately prior to the record date for the distribution of the
Special Securities, converted Securities into Common Shares, the conversion
price shall be adjusted so that the same shall equal the price determined
by multiplying the conversion price in effect immediately prior to such
record date by a fraction the numerator of which shall be the current
market price per share (as defined for purposes of this subsection (c) in
subsection (e) below) of Common
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Shares on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive) of the portion of the Special Securities
so distributed applicable to one Common Share, and the denominator of which
shall be the current market price per Common Shares (as defined in
subsection (e) below); provided, however, that in the event the then fair
market value (as so determined) of the portion of the Special Securities so
distributed applicable to one Common Share is equal to or greater than the
current market price per Common Share (as defined in subsection (e) below)
on the record date mentioned above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of Securities of such
Series shall have the right to receive the amount and kind of Special
Securities such holder would have received had he converted such Securities
immediately prior to the record date for the distribution of the Special
Securities. Such adjustment shall become effective immediately, except as
provided in subsection (h) below, after the record date for the
determination of stockholders entitled to receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the conversion
price shall have been adjusted because the Company has declared a dividend,
or made a distribution, on the outstanding Common Shares in the form of any
right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the conversion price shall
forthwith be adjusted to equal the conversion price that would have applied
had such right or warrant never been declared, distributed or issued.
(e) For the purpose of any computation under subsection (b) above,
the current market price per Common Share on any date shall be deemed to be
the average of the reported last sales prices for the thirty consecutive
Trading Days (as defined below) commencing forty-five Trading Days before
the date in question. For the purpose of any computation under subsection
(c) above, the current market price per Common Share on any date shall be
deemed to be the average of the reported last sales prices for the ten
consecutive Trading Days before the date in question. The reported last
sales price for each day (whether for purposes of subsection (b) or
subsection (c)) shall be the reported last sales price, regular way, or, in
case no sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported on the New
York Stock Exchange Composite Tape or, if the Common Shares are not listed
or admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which the Common Shares are listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on
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the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common
Shares are not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the Common Shares on
each such day shall not have been reported through NASDAQ, the average of
the bid and asked prices for such day as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors or a committee thereof
or, if no such quotations are available, the fair market value of the
Common Shares as determined by a New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such purpose by
the Board of Directors. As used herein, the term "Trading Day" with respect
to the Common Shares means (x) if the Common Shares are listed or admitted
for trading on the New York Stock Exchange or another national securities
exchange, a day on which the New York Stock Exchange or such other national
securities exchange is open for business or (y) if the Common Shares are
quoted on the National Market System of the NASDAQ, a day on which trades
may be made on such National Market System or (z) otherwise, any day other
than a Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
(f) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, provided, further,
that adjustment shall be required and made in accordance with the
provisions of this Article Thirteen (other than this subsection (f)) not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Shares. All calculations
under this Article Thirteen shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be, with one-half cent and 1/200
of a share, respectively, being rounded upward. Anything in this Section
13.5 to the contrary notwithstanding, the Company shall be entitled to make
such reductions in the conversion price, in addition to those required by
this Section 13.5, as it in its discretion shall determine to be advisable
in order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Company to
its shareholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein provided,
the Company shall promptly file with the
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Trustee, at the Corporate Trust Office of the Trustee, and with the office
or agency maintained by the Company for the conversion of Securities of
such Series pursuant to Section 3.2, an Officers' Certificate, setting
forth the conversion price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility
with respect to any such certificate or any facts or computations set forth
therein, except to exhibit said certificate from time to time to any Holder
of a Security of such Series desiring to inspect the same. The Company
shall promptly cause a notice setting forth the adjusted conversion price
to be mailed to the Holders of Securities of such Series, as their names
and addresses appear upon the Security register of the Company.
(h) In any case in which this Section 13.5 provides that an adjustment
shall become effective immediately after a record date for an event, the
Company may defer until the occurrence of such event (y) issuing to the
Holder of any Security of such Series converted after such record date and
before the occurrence of such event the additional Common Shares issuable
upon such conversion by reason of the adjustment required by such event
over and above the Common Shares issuable upon such conversion before
giving effect to such adjustment and (z) paying to such holder any amount
in cash in lieu of any fractional Common Shares pursuant to Section 13.6
hereof.
SECTION 13.6 No Fractional Shares to be Issued. No fractional Common
Shares shall be issued upon any conversion of Securities. If more than one
Security of any Series shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such Series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (computed
to the nearest cent, with one-half cent being rounded upward) in respect of such
fraction of a share in an amount equal to the same fractional interest of the
reported last sales price (as defined in Section 13.5(e)) of the Common Shares
on the Trading Day (as defined in Section 13.5(e)) next preceding the day of
conversion.
SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a consolidation or
merger in which the Company is the continuing corporation), or in the case of
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any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a Series which was convertible into Common
Shares shall have the right thereafter to convert such Security into the kind
and amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Securities might have
been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Thirteen. Neither the Trustee nor any conversion
agent shall have any liability or responsibility for determining the correctness
of any provision contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property receivable
by Holders of the Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act of 1939, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Officers'
Certificate with respect thereto and an Opinion of Counsel with respect to legal
matters related thereto. If in the case of any such consolidation, merger, sale
or transfer, the stock or other securities and property receivable by a Holder
of the Securities includes stock or other securities and property of a
corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary.
The above provisions of this Section 13.7 shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 13.8 Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. With respect to the Securities of any Series,
in case:
(a) the Company shall authorize the issuance to all holders of Common
Shares of rights or warrants to subscribe for or purchase shares of its
capital stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Shares of evidences of indebtedness or
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<PAGE>
assets (except for cash dividends or distributions paid from retained
earnings of the Company);
(c) of any subdivision or combination of Common Shares or of any
consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such Series
pursuant to Section 3.2, and shall cause to be mailed to the Holders of
Securities of such Series, at their last addresses as they shall appear on the
Security register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Shares to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Shares shall be
entitled to exchange their Common Shares for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 13.8 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
SECTION 13.9 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Common Shares, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any Series as herein provided, such number of Common Shares as shall then be
issuable upon the conversion of all Outstanding Securities of such Series. The
Company covenants that all Common Shares which shall be so issuable shall, when
issued or delivered, be duly and validly issued Common Shares into which
Securities of such Series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 13.10 Compliance with Governmental Requirements. The Company
covenants that if any Common Shares required to be reserved for purposes of
conversion of Securities hereunder require
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<PAGE>
registration or listing with or approval of any governmental authority under any
Federal or State law, pursuant to the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or any national or regional
securities exchange on which the Common Shares are listed at the time of
delivery of any Common Shares, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. The issuance of certificates for Common Shares upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such names as may be directed
by, the holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificate unless or until the Person
or Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall have no duty, responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any Common Shares, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Security, and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee and any conversion agent, subject
to the provisions of Section 313 of the TIA, shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article Thirteen.
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<PAGE>
SECTION 13.13 Conversion of Securities Into Preferred Stock.
Notwithstanding anything to the contrary in this Article Thirteen, the Company
may issue Securities that are convertible into Preferred Shares, including
Preferred Shares convertible into Common Shares, in which case all terms and
conditions relating to the conversion of Securities into Preferred Shares,
including any terms similar to those provided in Sections 13.1 through 13.12,
shall be as provided in or pursuant to an appropriate resolution of the Board of
Directors or in any indenture supplemental hereto or as otherwise contemplated
by Section 2.3.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
FMC CORPORATION
By: /s/Michael J. Callahan
--------------------------
Name: Michael J. Callahan
Title: Executive Vice Pres.
and Chief Financial
Officer
ATTEST:
By: /s/Robert L. Day
-------------------
Name: Robert L. Day
Title: Secretary
[CORPORATE SEAL]
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: /s/J. Bartolini
--------------------------
Name: J. Bartolini
Title: Vice President
ATTEST:
By: /s/D.G. Donovan
---------------
Name: D.G. Donovan
Title: Assistant Secretary
[CORPORATE SEAL]
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<PAGE>
Exhibit 4-b
FMC CORPORATION
OFFICERS' CERTIFICATE
---------------------
Michael J. Callahan, Executive Vice President and Chief Financial Officer,
and Robert L. Day, Secretary, of FMC Corporation, a Delaware corporation (the
"Company"), each hereby certify that we are duly authorized to, and do hereby,
deliver this certificate to Harris Trust and Savings Bank (the "Trustee"), as
Trustee under the Indenture dated as of July 1, 1996 (the "Indenture"), that
attached hereto as Exhibit 1 are the resolutions duly adopted by an Offering
Committee appointed by the Board of Directors of the Company (the "Resolutions")
establishing the Company's Medium-Term Notes, Series A, Due More than Nine
Months from Date of Issue (the "Notes") pursuant to Section 2.3 of the Indenture
and a form of the Notes duly adopted by said Offering Committee and that:
(a) Each of us has read the conditions in the Indenture relating to the
authentication and delivery by the Trustee of the Notes and has read the
definitions in the Indenture relating thereto;
(b) Each of us has examined the Indenture;
(c) Each of us has, in our respective opinions, made such examination and
investigation as is necessary to enable each of us, respectively, to express an
informed opinion as to whether such conditions have been complied with;
(d) The specific terms and conditions of the Notes, or any of them, shall
be established from time to time by either the Chief Financial Officer or the
Treasurer of the Company, acting individually, pursuant to the authority granted
by the Resolutions, and implemented by means of the execution and delivery to
the Trustee of an Officers' Certificate (as defined in the Indenture); and
(e) In the opinion of each of us, all such conditions have been complied
with.
* * * * *
<PAGE>
Dated: January 24, 1997
FMC CORPORATION
By:/s/ Michael J. Callahan
----------------------------------
Michael J. Callahan
Executive Vice President
and Chief Financial Officer
By:/s/ Robert L. Day
----------------------------------
Robert L. Day
Secretary
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<PAGE>
EXHIBIT 1
RESOLUTIONS
OF
FMC CORPORATION
OFFERING COMMITTEE
RESOLVED, that pursuant to the authority granted this Committee by
resolutions of the Board of Directors of FMC Corporation (the "Company") duly
adopted on August 31, 1995, October 20, 1995 and December 6, 1996, in connection
with the offering and sale of up to $500,000,000 in aggregate public offering
price of securities of the Company, this Committee hereby approves the issuance
of a series of debt securities to be known as "Medium-Term Notes, Series A" (the
"Notes"), which Notes shall be limited to an aggregate principal amount of
$400,000,000 (excluding the amount of any original issue discount) and shall be
executed, authenticated and delivered in accordance with the provisions of, and
in all respects shall be subject to the terms, conditions and covenants of that
certain Indenture dated as of July 1, 1996 between the Company and Harris Trust
and Savings Bank, as trustee (the "Trustee"), as supplemented by any
supplemental indentures (the "Indenture");
RESOLVED FURTHER, that the Notes shall have the terms and conditions
set forth on Exhibit A hereto, together with such additional terms and
conditions as shall be established by either the Chief Financial Officer or the
Treasurer of the Company acting
<PAGE>
individually, and shall be implemented by means of the execution and delivery to
the Trustee of an Officers' Certificate (as defined in the Indenture) or a
supplemental indenture to the Indenture executed by the Chief Financial Officer
or Treasurer and such other officer as shall be required by the Indenture.
RESOLVED FURTHER, that a distribution agreement (the "Distribution
Agreement") to be dated as of January 24, 1997 among the Company and various
investment banking or similar firms, as agents (the "Agents"), which firms shall
have been approved by any of the chairman of the board, the president, the chief
financial officer or the treasurer of the Company (the "Designated Officers"),
acting individually, is hereby approved with such additions thereto, changes and
insertions thereon and deletions therefrom as the Designated Officer executing
such agreement shall deem necessary, appropriate or desirable, the authority of
such Designated Officer to be conclusively evidenced by his execution thereof.
The Company may also sell Notes (i) to any or all of the Agents, as principal or
principals, pursuant to the Distribution Agreement or (ii) directly to
purchasers thereof.
FURTHER RESOLVED, that the Company hereby appoints Harris Trust and
Savings Bank ("Harris") to act as calculation agent and paying agent in
connection with the Notes and that the Calculation Agent Agreement and the
Paying Agent Agreement, each to be dated as of January 24, 1997 between the
Company and Harris and the forms of the Notes, each attached hereto, are hereby
approved, each with such additions thereto, changes and insertions thereon and
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<PAGE>
deletions therefrom as any of the Designated Officers executing such agreements
and Notes shall deem necessary, appropriate or desirable, the authority of such
Designated Officers to be conclusively evidenced by their execution thereof;
FURTHER RESOLVED, that the Company's Prospectus dated January 23, 1997
and the Company's Prospectus Supplement dated January 23, 1997 used in
connection with the Notes are hereby approved, with such additions and
amendments thereto, changes and insertions thereon and deletions therefrom as
any of the Company's Designated Officers shall deem necessary, appropriate or
desirable; and
RESOLVED FURTHER, that any of the Company's officers is hereby
authorized to perform all such acts and deeds and to prepare, execute, deliver
and/or file all such agreements, documents, undertakings, certificates,
instruments and other papers in the name and on behalf of the Company as he or
she shall deem necessary or appropriate, and incur such expenses as he or she
deems necessary or appropriate, in order to carry out the purpose and intent of
any and all provisions of the foregoing resolutions, and all such acts by such
officers, or any of them, whether heretofore or hereafter done or performed,
which are in accordance with the purpose and intent of these resolutions, are
hereby ratified, confirmed and approved in all respects.
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<PAGE>
EXHIBIT A
Terms and Conditions of Medium-Term Notes, Series A
Capitalized terms used but not defined herein shall have the
respective meanings given to them in the Indenture dated as of July 1, 1996
between FMC Corporation (the "Company") and Harris Trust and Savings Bank, as
trustee, as supplemented by any supplemental indentures (the "Indenture").
A. GENERAL
1. The Medium-Term Notes, Series A (the "Notes") will be issued under the
Indenture and will constitute one series under the Indenture. The Notes will
rank pari passu with all other unsecured and unsubordinated indebtedness of the
Company. The Notes may be issued from time to time in an aggregate principal
amount of up to $400,000,000 or the equivalent thereof in one or more foreign or
composite currencies. For the purpose hereof, (i) the principal amount of any
Original Issue Discount Note (as defined below) means the first price at which a
substantial amount of the Notes is sold to the public (the "Issue Price") of
such Note and (ii) the principal amount of any Note issued in a foreign currency
or composite currency means the U.S. dollar equivalent on the date of issue of
the Issue Price of such Note.
2. The Notes will mature on any day more than nine months from the date
of issue, as set forth in the applicable officers' certificate specifying the
pricing and other terms of a Note (a "Pricing Certificate"). Except as may be
provided in the applicable Pricing Certificate, the Notes will be issued only in
fully registered form. Unless otherwise provided in the applicable Pricing
Certificate, Notes will be denominated in Authorized Denominations (as defined
below).
3. The Notes will be offered on a continuing basis, and each Note will be
issued initially as either a Global Security registered in the name of a nominee
of the Depository Trust Company, as Depository (a "Global Note"), or by a
certificate issued in definitive form (a "Definitive Note"). Except as set forth
in the Indenture, Global Notes will not be issuable as Definitive Notes.
4. The Notes may be presented for payment of principal and interest,
transfer of the Notes will be registrable and the Notes will be exchangeable at
the office or offices or agency maintained by the Company for such purpose;
provided that Global Notes will be exchangeable only in the manner and to the
extent set forth in the Indenture. On the date hereof, the agent for the
payment, transfer and exchange of the Notes (the "Paying Agent") is Harris Trust
and Savings Bank, acting through its corporate trust office at 111 West Monroe
Street, Chicago, Illinois 60603.
5. The applicable Pricing Certificate will specify the price (the "Issue
Price") of each Note to be sold pursuant thereto (unless such Note is to be sold
at 100% of its principal amount), the interest rate or interest rate formula,
maturity, currency or composite currency and principal amount and any other
terms on which each Note will be issued.
6. As used herein, the following terms shall have the meanings set forth
below:
"Authorized Denominations" means, unless otherwise provided in the
applicable Pricing Certificate (i) with respect to Notes denominated in
U.S. dollars, U.S. $1,000 or any amount in excess thereof which is an
integral multiple of U.S. $1,000 and (ii) with respect to Notes denominated
in foreign or composite currencies, the equivalent of $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount
in excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying
rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange
Rate") on the Business Day (as defined below) immediately preceding the
date of issuance; provided, however, that in the case of ECU's, the Market
Exchange Rate shall be the rate of exchange determined by the Commission of
the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities, or any successor publication,
on the Business Day immediately preceding the date of issuance.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New
<PAGE>
York or Chicago, Illinois and (i) with respect to LIBOR Notes (as defined
below), is also a London Banking Day, (ii) with respect to Notes
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (iii) with respect to Notes denominated in Australian
dollars, in Sydney and (iv) with respect to Notes denominated in ECUs, that
is not a non-ECU clearing day, as determined by the ECU Banking Association
in Paris.
An "Interest Payment Date" with respect to any Note shall be a date on
which, under the terms of such Note, regularly scheduled interest shall be
payable. Such Interest Payment Date shall be specified in the applicable
Pricing Certificate.
"London Banking Day" means any day on which dealings in deposits in
the Index Currency (as defined below) are transacted in the London
interbank market.
"Original Issue Discount Note" means any Note that 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 the
Indenture.
The "Record Date" with respect to any Interest Payment Date shall be
the date 15 calendar days prior to such Interest Payment Date, whether or
not such date shall be a Business Day.
"Specified Currency" means U.S. dollars or another currency or a
composite currency specified to be applicable to the issuance of Notes.
B. PAYMENT CURRENCY
1. If the applicable Pricing Certificate provides for payments of
interest and principal on a non-U.S. dollar denominated Note to be made, at the
option of the holder of such Note, in U.S. dollars, conversion of the Specified
Currency into U.S. dollars will be based on the highest bid quotation in The
City of New York received by the entity appointed by the Company as exchange
rate agent, which shall initially be Harris Trust and Savings Bank (the
"Exchange Rate Agent"), at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of the Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to the holders of Notes and at which the applicable dealer
commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency. All currency exchange costs
will be borne by the holders of Notes by deductions from such payments.
2. Except as set forth below, if the principal of, premium, if any, or
interest on, any Note is payable in a Specified Currency other than U.S. dollars
and such Specified Currency is not available to the Company for making payments
thereof due to the imposition of exchange controls or other circumstances beyond
the control of the Company or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions of or within the international banking community, then the Company
will be entitled to satisfy its obligations to holders of the Notes by making
such payments in U.S. dollars on the basis of the Market Exchange Rate on the
date of such payment or, if the Market Exchange Rate is not available on such
date, as of the most recent practicable date. Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
3. If payment in respect of a Note is required to be made in ECUs and
ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Company's control or are no longer used in the European
Monetary System, then all payments in respect of such Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of each payment in
U.S. dollars shall be computed on the basis of the equivalent of the ECU in U.S.
dollars, determined as described below, as of the second Business Day prior to
the date on which such payment is due.
A-2
<PAGE>
4. The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or the Exchange Rate Agent on the following basis. The
component currencies of the ECU for this purpose (the "Components") shall be the
currency amounts that were components of the ECU as of the last date on which
the ECU was used in the European Monetary System. The equivalent of the ECU in
U.S. dollars shall be calculated by aggregating the U.S. dollar equivalents of
the Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Company or the Exchange Rate Agent on the basis of the most
recently available Market Exchange Rates for such Components.
5. If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
6. All determinations referred to above made by the Company or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes.
C. INTEREST AND PRINCIPAL PAYMENTS
1. Interest will be payable to the person in whose name the Note is
registered at the close of business on the applicable Record Date; provided that
the interest payable upon maturity, redemption or repayment (whether or not the
date of maturity, redemption or repayment is an Interest Payment Date) will be
payable to the person to whom principal is payable. The initial interest payment
on a Note will be made on the first Interest Payment Date falling after the date
the Note is issued; provided, however, that payments of interest (or, in the
case of a Fixed Rate Note (as hereafter defined) which pays a level amount in
respect of both principal and interest amortized over the life of the Note (an
"Amortizing Note"), principal and interest) on a Note issued less than 15
calendar days before an Interest Payment Date will be paid on the next
succeeding Interest Payment Date to the holder of record on the Record Date with
respect to such succeeding Interest Payment Date, unless otherwise specified in
the applicable Pricing Certificate.
2. U.S. dollar payments of interest, other than interest payable at
maturity (or on the date of redemption or repayment, if a Note is redeemed or
repaid by the Company prior to maturity), will be made by check mailed to the
address of the person entitled thereto as shown on the Note register. U.S.
dollar payment of principal, premium, if any, and interest upon maturity,
redemption or repayment will be made in immediately available funds against
presentation and surrender of the Note. Notwithstanding the foregoing, (a) the
Depository (as defined below), as holder of Global Notes, shall be entitled to
receive payments of interest by wire transfer of immediately available funds and
(b) a holder of U.S. $10,000,000 (or the equivalent) or more in aggregate
principal amount of Definitive Notes having the same Interest Payment Date shall
be entitled to receive payments of interest by wire transfer of immediately
available funds upon written request to the Paying Agent, provided such request
is received not later than 15 calendar days prior to the applicable Interest
Payment Date.
3. Unless otherwise specified in the applicable Pricing Certificate, a
beneficial owner of Global Notes denominated in a Specified Currency electing to
receive payments of principal or any premium or interest in a currency other
than U.S. dollars must notify the participant through which its interest is held
on or prior to the applicable Record Date, in the case of a payment of interest,
and on or prior to the sixteenth day prior to maturity, in the case of principal
or premium of such beneficial owner's election to receive all or a portion of
such payment in a Specified Currency. Such participant must notify the
Depository of such election on or prior to the third Business Day after such
Record Date. The Depository will notify the Paying Agent of such election on or
prior to the fifth Business Day after such Record Date. If complete instructions
are received by the participant and forwarded by the participant to the
Depository, and by the Depository to the Paying Agent, on or prior to such
dates, the beneficial owner will receive payments in the Specified Currency by
wire transfer of immediately available funds to an account maintained by the
payee with a bank located outside the United States; otherwise the beneficial
owner will receive payments in U.S. dollars.
A-3
<PAGE>
4. Certain Notes, including Original Issue Discount Notes, may be
considered to be issued with original issue discount, which must be included in
income for United States federal income tax purposes at a constant rate. Unless
otherwise specified in the applicable Pricing Certificate, if the principal of
any Original Issue Discount Note is declared to be due and payable immediately,
the amount of principal due and payable with respect to such Note shall be
limited to the aggregate principal amount of such Note multiplied by the sum of
its Issue Price (expressed as a percentage of the aggregate principal amount)
plus the original issue discount amortized from the date of issue to the date of
declaration, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration). Special considerations applicable to any such Notes
will be set forth in the applicable Pricing Certificate.
D. FIXED RATE NOTES
1. Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from the date of issuance at the annual rate stated on the face
thereof, except as described below under "Extension of Maturity," until the
principal thereof is paid or made available for payment. Unless otherwise
specified in the applicable Pricing Certificate, such interest will be computed
on the basis of a 360-day year of twelve 30-day months. Unless otherwise
specified in the applicable Pricing Certificate, payments of interest on Fixed
Rate Notes other than Amortizing Notes will be made semiannually on each
Interest Payment Date specified in the Pricing Certificate and at maturity or
upon any earlier redemption or repayment. Payments of principal and interest on
Amortizing Notes, which are securities on which payments of principal and
interest are made in equal installments over the life of the security, will be
made either quarterly on each Interest Payment Date or semiannually on each
Interest Payment Date, as set forth in the applicable Pricing Certificate, and
at maturity or upon any earlier redemption or repayment. Payments with respect
to Amortizing Notes will be applied first to interest due and payable thereon
and then to the reduction of the unpaid principal amount thereof. A table
setting forth repayment information in respect of each Amortizing Note will be
provided to the original purchaser and will be available, upon request, to
subsequent holders.
2. If any Interest Payment Date for any Fixed Rate Note falls on a day
that is not a Business Day, the interest payment shall be made on the next day
that is a Business Day, and no interest on such payment shall accrue for the
period from and after the Interest Payment Date. If the maturity (or date of
redemption or repayment) of any Fixed Rate Note falls on a day that is not a
Business Day, the payment of interest and principal (and premium, if any) will
be made on the next succeeding Business Day, and no interest on such payment
shall accrue for the period from and after the maturity date (or date of
redemption or repayment).
3. Interest payments for Fixed Rate Notes will include accrued interest
from and including the date of issue or from and including the last date in
respect of which interest has been paid, as the case may be, to, but excluding,
the Interest Payment Date or the date of maturity or earlier redemption or
repayment, as the case may be. The interest rates the Company will agree to pay
on newly issued Fixed Rate Notes are subject to change without notice by the
Company from time to time, but no such change will affect any Fixed Rate Notes
theretofore issued or that the Company has agreed to issue.
E. FLOATING RATE NOTES
1. Each Note bearing interest at a floating rate (a "Floating Rate Note")
will bear interest from the date of issuance until the principal thereof is paid
or made available for payment at a rate determined by reference to an interest
rate basis or formula (the "Base Rate"), which may be adjusted by a Spread
and/or Spread Multiplier (each as defined below). The applicable Pricing
Certificate will designate one or more of the following Base Rates (as each is
hereafter defined) as applicable to each Floating Rate Note: (a) the CD Rate (a
"CD Rate Note"), (b) the Commercial Paper Rate (a "Commercial Paper Rate Note"),
(c) the Federal Funds Rate (a "Federal Funds Rate Note"), (d) LIBOR (a "LIBOR
Note"), (e) the Prime Rate (a "Prime Rate Note"), (f) the Treasury Rate (a
"Treasury Rate Note"), (g) the CMT Rate (a "CMT Rate Note") or (h) such other
Base Rate or interest rate formula as is set forth in such Pricing Certificate
and in such Floating Rate Note. The "Index Maturity" for any Floating Rate Note
is the period of maturity of the instrument or obligation from which the Base
Rate is calculated and will be specified in the applicable Pricing Certificate.
A-4
<PAGE>
2. Unless otherwise specified in the applicable Pricing Certificate, the
interest rate on each Floating Rate Note will be calculated by reference to the
specified Base Rate (i) plus or minus the Spread, if any, and/or (ii) multiplied
by the Spread Multiplier, if any. The "Spread" is the number of basis points
(one one-hundredth of a percentage point) specified in the applicable Pricing
Certificate to be added to or subtracted from the Base Rate for such Floating
Rate Note, and the "Spread Multiplier" is the percentage specified in the
applicable Pricing Certificate to be applied to the Base Rate for such Floating
Rate Note.
3. As specified in the applicable Pricing Certificate, a Floating Rate
Note may also have either or both of the following: (i) a maximum limitation, or
ceiling, on the rate of interest which may accrue during any interest period
("Maximum Interest Rate"); and (ii) a minimum limitation, or floor, on the rate
of interest which may accrue during any interest period ("Minimum Interest
Rate"). In addition to any Maximum Interest Rate that may be applicable to any
Floating Rate Note pursuant to the above provisions, the interest rate on a
Floating Rate Note will in no event be higher than the maximum rate permitted by
Illinois law, as the same may be modified by United States law of general
application.
4. Unless otherwise specified in the applicable Pricing Certificate, the
rate of interest on each Floating Rate Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "Interest
Reset Period" for such Note, and the first day of each Interest Reset Period
being an "Interest Reset Date"), as specified in the applicable Pricing
Certificate. Unless otherwise specified in the Pricing Certificate, the Interest
Reset Date will be, in the case of Floating Rate Notes which reset daily, each
Business Day, in the case of Floating Rate Notes (other than Treasury Rate
Notes) which reset weekly, the Wednesday of each week; in the case of Treasury
Rate Notes which reset weekly, the Tuesday of each week, except as provided
below; in the case of Floating Rate Notes which reset monthly, the third
Wednesday of each month; in the case of Floating Rate Notes which reset
quarterly, the third Wednesday of March, June, September, and December; in the
case of Floating Rate Notes which reset semi-annually, the third Wednesday of
two months of each year, as specified in the applicable Pricing Certificate; and
in the case of Floating Rate Notes which reset annually, the third Wednesday of
one month of each year, as specified in the applicable Pricing Certificate;
provided, however, that (a) the interest rate in effect from the date of issue
to the first Interest Reset Date with respect to a Floating Rate Note will be
the initial interest rate set forth in the applicable Pricing Certificate (the
"Initial Interest Rate") and (b) unless otherwise specified in the applicable
Pricing Certificate the interest rate in effect for the ten calendar days
immediately prior to maturity, redemption or repayment will be that in effect on
the tenth calendar day preceding such maturity, redemption or repayment date. If
any Interest Reset Date for any Floating Rate Note would otherwise be a day that
is not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
5. Except as provided below, unless otherwise specified in the applicable
Pricing Certificate, interest on Floating Rate Notes will be payable: (i) in the
case of Floating Rate Notes with a daily, weekly or monthly Interest Reset Date,
on the third Wednesday of each month or on the third Wednesday of March, June,
September and December, as specified in the applicable Pricing Certificate; (ii)
in the case of Floating Rate Notes with a quarterly Interest Reset Date, on the
third Wednesday of March, June, September and December; (iii) in the case of
Floating Rate Notes with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified in the applicable Pricing Certificate; and
(iv) in the case of Floating Rate Notes with an annual Interest Reset Date, on
the third Wednesday of the month specified in the applicable Pricing
Certificate. If any Interest Payment Date for any Floating Rate Note would fall
on a day that is not a Business Day with respect to such Floating Rate Note,
such Interest Payment Date will be postponed to the following day that is a
Business Day with respect to such Floating Rate Note, except that, in the case
of a LIBOR Note, if such Business Day is in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding day that is a
Business Day with respect to such LIBOR Note. If the maturity date or any
earlier redemption or repayment date of a Floating Rate Note would fall on a day
that is not a Business Day, the payment of principal, premium, if any, and
interest will be made on the next succeeding Business Day, and no interest on
such payment shall accrue for the period from and after such maturity,
redemption or repayment date, as the case may be.
6. Unless otherwise specified in the applicable Pricing Certificate,
interest payments for Floating Rate Notes shall be the amount of interest
accrued from and including the date of issue or from and including the last date
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to which interest has been paid to, but excluding, the Interest Payment Date or
maturity date or date of redemption or repayment.
7. With respect to a Floating Rate Note, accrued interest shall be
calculated by multiplying the principal amount of such Floating Rate Note by an
accrued interest factor. Such accrued interest factor will be computed by adding
the interest factors calculated for each day in the period for which interest is
being paid. Unless otherwise specified in the applicable Pricing Certificate,
the interest factor for each such day is computed by dividing the interest rate
applicable to such day by 360, in the case of CD Rate Notes, Commercial Paper
Rate Notes, Federal Funds Rate Notes, LIBOR Notes and Prime Rate Notes or by the
actual number of days in the year, in the case of Treasury Rate Notes and CMT
Rate Notes. All percentages used in or resulting from any calculation of the
rate of interest on a Floating Rate Note will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on Floating Rate Notes will be rounded to the
nearest cent, with one-half cent rounded upward. The interest rate in effect on
any Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
8. Unless otherwise stated in the applicable Pricing Certificate, the
calculation agent (the "Calculation Agent") with respect to any issue of
Floating Rate Notes shall be Harris Trust and Savings Bank. Upon the request of
the holder of any Floating Rate Note, the Calculation Agent will provide the
interest rate then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date with respect to such Floating
Rate Note.
9. The "Interest Determination Date" pertaining to an Interest Reset Date
for CD Rate Notes, Commercial Paper Rate Notes, Federal Funds Rate Notes, CMT
Rate Notes and Prime Rate Notes will be the second Business Day next preceding
such Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for a LIBOR Note will be the second London Banking Day
preceding such Interest Reset Date. The Interest Determination Date pertaining
to an Interest Reset Date for a Treasury Rate Note will be the day of the week
in which such Interest Reset Date falls on which Treasury bills would normally
be auctioned. Treasury bills are normally sold at auction on Monday of each
week, unless that day is a legal holiday, in which case the auction is normally
held on the following Tuesday, but such auction may be held on the preceding
Friday. If, as the result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Interest Determination Date pertaining
to the Interest Reset Date occurring in the next succeeding week. If an auction
falls on a day that is an Interest Reset Date, such Interest Reset Date will be
the next following Business Day.
10. Unless otherwise specified in the applicable Pricing Certificate, the
"Calculation Date," where applicable, pertaining to an Interest Determination
Date will be the earlier of (i) the tenth calendar day after such Interest
Determination Date, or, if such day is not a Business Day, the next succeeding
Business Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date, as the case may be.
11. Interest rates will be determined by the Calculation Agent as follows:
(a) CD Rate Notes
(i) CD Rate Notes will bear interest at the interest rate
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified in the CD Rate Notes and in the applicable
Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, "CD Rate" means, with respect to any Interest Determination Date,
the rate on such date for negotiable certificates of deposit having the Index
Maturity designated in the applicable Pricing Certificate as published by the
Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication of the Board
of Governors of the Federal Reserve System ("H.15(519)") under the heading "CDs
(Secondary Market)," or, if not so published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date,
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the CD Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity designated in the applicable
Pricing Certificate as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" (the "Composite Quotations") under the heading "Certificates of
Deposit." If such rate is not yet published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate on such Interest Determination
Date will be calculated by the Calculation Agent and will be the arithmetic mean
of the secondary market offered rates as of 10:00 A.M., New York City time, on
such Interest Determination Date for certificates of deposit in an amount that
is representative for a single transaction at that time with a remaining
maturity closest to the Index Maturity designated in the Pricing Certificate of
three leading nonbank dealers in negotiable U.S. dollar certificates of deposit
in The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money center banks; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the CD Rate in effect for the applicable period
will be the same as the CD Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable on the CD Rate Notes for which such CD Rate is being determined shall be
the Initial Interest Rate).
(b) Commercial Paper Rate Notes
(i) Commercial Paper Rate Notes will bear interest at the
interest rate (calculated with reference to the Commercial Paper Rate and the
Spread and/or Spread Multiplier, if any, and subject to the Minimum Interest
Rate and the Maximum Interest Rate, if any) specified in the Commercial Paper
Rate Notes and in the applicable Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, "Commercial Paper Rate" means, with respect to any Interest
Determination Date, the Money Market Yield (as defined below) of the rate on
such date for commercial paper having the Index Maturity specified in the
applicable Pricing Certificate, as such rate shall be published in H.15(519),
under the heading "Commercial Paper." In the event that such rate is not
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on such Interest Determination Date for
commercial paper of the specified Index Maturity as published in Composite
Quotations under the heading "Commercial Paper." If by 3:00 P.M., New York City
time, on such Calculation Date such rate is not yet available in either
H.15(519) or Composite Quotations, then the Commercial Paper Rate shall be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 A.M.,
New York City time, on such Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
for commercial paper of the specified Index Maturity, placed for an industrial
issuer whose bond rating is "AA" or the equivalent, from a nationally recognized
statistical rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting offered rates as mentioned in
this sentence, the Commercial Paper Rate in effect for the applicable period
will be the same as the Commercial Paper Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable on the Commercial Paper Rate Notes for which such Commercial
Paper Rate is being determined shall be the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
--------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days for which interest is being calculated.
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(c) Federal Funds Rate Notes
(i) Federal Funds Rate Notes will bear interest at the interest
rate (calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified in the Federal Funds Rate Notes and in
the applicable Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, the "Federal Funds Rate" means, with respect to any Interest
Determination Date, the rate on such date for Federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)" or, if not so published
by 9:00 A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate will be the rate on such
Interest Determination Date as published in the Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate is not yet published in
either H.15(519) or the Composite Quotations by 3:00 P.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Federal Funds Rate for such Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds, as of 9:00 A.M., New York City time, on
such Interest Determination Date, arranged by three leading brokers of Federal
funds transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as set forth above, the Federal Funds Rate in effect for
the applicable period will be the same as the Federal Funds Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable on the Federal Funds Rate Notes for
which such Federal Funds Rate is being determined shall be the Initial Interest
Rate).
(d) LIBOR Notes
(i) LIBOR Notes will bear interest at the interest rate
(calculated with reference to LIBOR and the Spread and/or Spread Multiplier, if
any, and subject to the Minimum Interest Rate and the Maximum Interest Rate, if
any) specified in the LIBOR Notes and in the applicable Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, "LIBOR" for each Interest Determination Date will be determined by
the Calculation Agent as follows:
(A) As of the Interest Determination Date, LIBOR will be either:
(1) if "LIBOR Reuters" is specified in the applicable Pricing Certificate,
the arithmetic mean of the offered rates (unless the specified Designated
LIBOR Page (as defined below) by its terms provides only for a single rate,
in which case such single rate shall be used) for deposits in the Index
Currency having the Index Maturity designated in the applicable Pricing
Certificate, commencing on the second London Banking Day immediately
following such Interest Determination Date, that appear on the Designated
LIBOR Page as of 11:00 A.M., London time, on that Interest Determination
Date, if at least two such offered rates appear (unless, as aforesaid, only
a single rate is required) on such Designated LIBOR Page, or (2) if "LIBOR
Telerate" is specified in the applicable Pricing Certificate, the rate for
deposits in the Index Currency (as defined below) having the Index Maturity
designated in the applicable Pricing Certificate, commencing on the second
London Banking Day immediately following such Interest Determination Date,
that appears on such Designated LIBOR Page as of 11:00 A.M., London time,
on that Interest Determination Date. If fewer than two offered rates appear
(if "LIBOR Reuters" is specified in the applicable Pricing Certificate) or
no rate appears (if "LIBOR Telerate" is specified in the applicable Pricing
Certificate), LIBOR in respect of the related Interest Determination Date
will be determined as if the parties had specified the rate described in
clause (B) below.
(B) With respect to an Interest Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified in the
applicable Pricing Certificate) or no rate appears (if "LIBOR Telerate" is
specified in the applicable Pricing Certificate), the Calculation Agent
will request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent,
to provide the Calculation Agent with its offered quotation for deposits in
the Index
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Currency for the period of the Index Maturity designated in the applicable
Pricing Certificate, commencing on the second London Banking Day
immediately following such Interest Determination Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time, on
such Interest Determination Date and in a principal amount of not less than
$1,000,000 (or the equivalent in the Index Currency, if the Index Currency
is not the U.S. dollar) that is representative of a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such Interest Determination
Date will be the arithmetic mean of the rates quoted at approximately 11:00
A.M. (or such other time specified in the applicable Pricing Certificate),
in the applicable principal financial center for the country of the Index
Currency on such Interest Determination Date, by three major banks in such
principal financial center selected by the Calculation Agent for loans in
the Index Currency to leading European banks, having the Index Maturity
designated in the applicable Pricing Certificate and in a principal amount
of not less than $1,000,000 commencing on the second London Banking Day
immediately following such Interest Determination Date (or the equivalent
in the Index Currency, if the Index Currency is not the U.S. dollar) that
is representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
in effect for the applicable period will be the same as LIBOR for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable on the LIBOR Notes for
which such LIBOR is being determined shall be the Initial Interest Rate).
(iii) "Index Currency" means the currency (including composite
currencies) specified in the applicable Pricing Certificate as the currency for
which LIBOR shall be calculated. If no such currency is specified in the
applicable Pricing Certificate, the Index Currency shall be U.S. dollars.
(iv) "Designated LIBOR Page" means either (1) if "LIBOR Reuters"
is designated in the applicable Pricing Certificate, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Index Currency, or (2) if "LIBOR
Telerate" is designated in the applicable Pricing Certificate, the display on
the Dow Jones Telerate Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency. If neither
LIBOR Reuters nor LIBOR Telerate is specified in the applicable Pricing
Certificate, LIBOR for the applicable Index Currency will be determined as if
LIBOR Telerate had been specified. If the U.S. dollar is the Index Currency,
LIBOR will be determined as if Page 3750 had been specified. "Page 3750" means
the display designated as page "3750" on the Telerate Service (or such other
page as may replace the 3750 page on that service or such other service or
services as may be nominated by the British Bankers' Association for the
purposes of displaying London interbank offered rates for U.S. dollar deposits).
(e) Prime Rate Notes
(i) Prime Rate Notes will bear interest at the interest rate
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Maximum Interest Rate and the Maximum
Interest Rate, if any) specified in the Prime Rate Notes and in the applicable
Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, "Prime Rate" means, with respect to any Interest Determination
Date, the rate set forth in H.15(519) for such date opposite the caption "Bank
Prime Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank named on the Reuters
Screen NYMF Page (as defined below) as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the Reuters
Screen NYMF Page on such Interest Determination Date, or, if fewer than four
such rates appear on the Reuters Screen NYMF Page for such Interest
Determination Rate, the rate will be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days in the year divided by 360 as
of the close of business on such Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the Calculation
Agent and shall be determined as the arithmetic mean on the basis of the prime
rates in The City of New
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York by the appropriate number of substitute banks or trust companies organized
and doing business under the laws of the United States, or any State thereof, in
each case having total equity capital of at least U.S. $500 million and being
subject to supervision or examination by federal or state authority, selected by
the Calculation Agent to quote such rate or rates; provided, however, that if
the banks or trust companies selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the "Prime Rate" in effect for the applicable
period will be the same as the Prime Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable on the Prime Rate Notes for which such Prime Rate is being
determined shall be the Initial Interest Rate). "Reuters Screen NYMF Page" means
the display designated as Page "NYMF" on the Reuters Monitor Money Rates
Services (or such other page as may replace the NYMF Page on that service for
the purpose of displaying prime rates or base lending rates of major United
States banks).
(f) Treasury Rate Notes
(i) Treasury Rate Notes will bear interest at the interest rate
(calculated with reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified in the Treasury Rate Notes and in the
applicable Pricing Certificate.
(ii) Unless otherwise specified in the applicable Pricing
Certificate, the "Treasury Rate" means, with respect to any Interest
Determination Date, the rate for the auction held on such date of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
designated in the applicable Pricing Certificate, as published in H.15(519)
under the heading "Treasury Bills auction average (investment)" or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the auction average rate on such Interest
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity designated in
the applicable Pricing Certificate are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held on such Interest Determination Date, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) calculated using the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
designated in the applicable Pricing Certificate; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting bid rates
as mentioned in this sentence, the Treasury Rate for such Interest Reset Date
will be the same as the Treasury Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable on the Treasury Rate Notes for which the Treasury Rate is being
determined shall be the Initial Interest Rate).
(g) CMT Rate Notes
(i) CMT Rate Notes will bear interest at the interest rate
(calculated with reference to the CMT Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified in the CMT Rate Notes and in the applicable
Pricing Certificate.
(ii) Unless otherwise indicated in an applicable Pricing
Certificate, "CMT Rate" means, with respect to any Interest Determination Date,
the rate displayed on the Designated CMT Telerate Page (as defined below) under
the caption "... Treasury Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 p.m.," under the column for the Designated
CMT Maturity Index (as defined below) for (a) if the Designated CMT Telerate
Page is 7055, the rate on such Interest Determination Date and (b) if the
Designated CMT Telerate Page is 7052, the week or the month, as applicable,
ended immediately preceding the week in which the related Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page, or if not
displayed by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such Interest Determination Date will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as is published in
the relevant H.15(519). If such rate is no longer published, or, if not
published by 3:00 P.M., New York City time, on the related
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Calculation Date, then the CMT Rate for such Interest Determination Date will be
such Treasury Constant Maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index) for the
Interest Determination Date with respect to such Interest Reset Date as may then
be published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time on the Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Company, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury notes quotations, the CMT Rate for such
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 P.M., New York City time, on the
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate for such Interest Reset Date will be the same as
the CMT Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable on the CMT Rate
Notes for which the CMT Rate is being determined shall be the Initial Interest
Rate). If two Treasury notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury note with the shorter
remaining term to maturity will be used.
(iii) "Designated CMT Telerate Page" means the display on the
Dow Jones Telerate Service on the page designated in an applicable Pricing
Certificate (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)),
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified in the applicable Pricing Certificate,
the Designated CMT Telerate Page shall be 7052, for the most recent week.
(iv) "Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in an applicable Pricing Certificate with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Pricing Certificate, the Designated CMT Maturity Index shall be two years.
F. RENEWABLE NOTES
1. The Company may also issue from time to time variable rate
renewable notes (the "Renewable Notes") that will bear interest at the interest
rate (calculated with reference to a Base Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified in the Renewable Notes and in the applicable
Pricing Certificate.
2. The Renewable Notes will mature on an Interest Payment Date as
specified in the applicable Pricing Certificate (the "Initial Maturity Date"),
unless the maturity of all or any portion of the principal amount thereof is
extended in accordance with the procedures described below. On the Interest
Payment Dates (each such Interest
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Payment Date, an "Election Date"), the maturity of the Renewable Notes will be
extended to the Interest Payment Date occurring twelve months after such
Election Date, unless the holder thereof elects to terminate the automatic
extension of the maturity of the Renewable Notes or of any portion thereof
having a principal amount of $1,000 or any multiple of $1,000 in excess thereof
by delivering a notice to such effect to the Paying Agent not less than nor more
than a number of days to be specified in the applicable Pricing Certificate
prior to such Election Date. Such option may be exercised with respect to less
than the entire principal amount of the Renewable Notes; provided that the
principal amount for which such option is not exercised is at least $1,000 or
any larger amount that is an integral multiple of $1,000. Notwithstanding the
foregoing, the maturity of the Renewable Notes may not be extended beyond the
Final Maturity Date (as hereafter defined), as specified in the applicable
Pricing Certificate. If the holder elects to terminate the automatic extension
of the maturity of any portion of the principal amount of the Renewable Notes
and such election is not revoked as described below, such portion will become
due and payable on the Interest Payment Date falling six months (unless another
period is specified in the applicable Pricing Certificate) after the Election
Date prior to which the holder made such election.
3. An election to terminate the automatic extension of maturity may
be revoked as to any portion of the Renewable Notes having a principal amount of
$1,000 or any multiple of $1,000 in excess thereof by delivering a notice to
such effect to the Paying Agent on any day following the effective date of the
election to terminate the automatic extension of maturity and prior to the date
15 days before the date on which such portion would otherwise mature. Such a
revocation may be made for less than the entire principal amount of the
Renewable Notes for which the automatic extension of maturity has been
terminated; provided that the principal amount of the Renewable Notes for which
the automatic extension of maturity has been terminated and for which such a
revocation has not been made is at least $1,000 or any larger amount that is an
integral multiple of $1,000. Notwithstanding the foregoing, a revocation may
not be made during the period from and including a Record Date to but excluding
the immediately succeeding Interest Payment Date.
4. An election to terminate the automatic extension of the maturity
of the Renewable Notes, if not revoked as described above by the holder making
the election or any subsequent holder, will be binding upon such subsequent
holder.
5. The Renewable Notes may be redeemed in whole or in part at the
option of the Company on the Interest Payment Dates in each year specified in
the applicable Pricing Certificate, commencing with the Interest Payment Date
specified in the applicable Pricing Certificate, at a redemption price as stated
in the applicable Pricing Certificate, together with accrued and unpaid interest
to the date of redemption. Notwithstanding anything to the contrary herein,
notice of redemption will be provided by mailing a notice of such redemption to
each holder by first class mail, postage prepaid, at least 180 days prior to the
date fixed for redemption.
G. INDEXED NOTES
The Notes may be issued, from time to time, as Notes of which the principal
amount payable on a date more than nine months from the date of original issue
(the "Stated Maturity") and/or on which the amount of interest payable on an
Interest Payment Date will be determined by reference to currencies, currency
units, commodity prices, financial or non-financial indices or other factors
(the "Indexed Notes"), as indicated in the applicable Pricing Certificate.
Holders of Indexed Notes may receive a principal amount at maturity that is
greater than or less than the face amount of such Notes depending upon the
fluctuation of the relative value, rate or price of the specified index.
Specific information pertaining to the method for determining the principal
amount payable at maturity, a historical comparison of the relative value, rate
or price of the specified index and the face amount of the Indexed Note and
certain additional United States federal tax considerations will be described in
the applicable Pricing Certificate.
H. EXTENSION OF MATURITY
1. The Pricing Certificate relating to each Note (other than an
Amortizing Note) will indicate whether the Company has the option to extend the
maturity of such Note for one or more periods of one or more whole years (each
an "Extension Period") up to but not beyond the date (the "Final Maturity Date")
set forth in such Pricing
A-12
<PAGE>
Certificate. If the Company has such option with respect to any such Note (an
"Extendible Note"), the following procedures will apply, unless modified as set
forth in the applicable Pricing Certificate.
2. The Company may exercise such option with respect to an Extendible
Note by notifying the Paying Agent of such exercise at least 45 but not more
than 60 days prior to the maturity date originally in effect with respect to
such Note (the "Original Maturity Date") or, if the maturity date of such Note
has already been extended, prior to the maturity date then if effect (an
"Extended Maturity Date"). No later than 38 days prior to the Original Maturity
Date or an Extended Maturity Date, as the case may be (each, a "Maturity Date"),
the Paying Agent will mail to the holder of such Note a notice (the "Extension
Notice") relating to such Extension Period, by first class mail, postage
prepaid, setting forth (a) the election of the Company to extend the maturity of
such Note; (b) the new Extended Maturity Date; (c) the interest rate applicable
to the Extension Period (which, in the case of a Floating Rate Note, will be
calculated with reference to a Base Rate and the Spread and/or Spread
Multiplier, if any); and (d) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the mailing by the Paying Agent of an Extension
Notice to the holder of an Extendible Note, the maturity of such Note shall be
extended automatically, and, except as modified by the Extension Notice and as
described in the next paragraph, such Note will have the same terms it had prior
to the mailing of such Extension Notice.
3. Notwithstanding the foregoing, not later than 10:00 A.M., New York
City time, on the twentieth calendar day prior to the Maturity Date then in
effect for an Extendible Note (or, if such day is not a Business Day, not later
than 10:00 A.M., New York City time, on the immediately succeeding Business
Day), the Company may, at its option, revoke the interest rate provided for in
the Extension Notice and establish a higher interest rate (or, in the case of a
Floating Rate Note, a higher Spread and/or Spread Multiplier, if any) for the
Extension Period by causing the Paying Agent to send notice of such higher
interest rate (or, in the case of a Floating Rate Note, a higher Spread and/or
Spread Multiplier, if any) to the holder of such Note by first class mail,
postage prepaid, or by such other means as shall be agreed between the Company
and the Paying Agent. Such notice shall be irrevocable. All Extendible Notes
with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate (or, in the case of a
Floating Rate Note, a higher Spread and/or Spread Multiplier, if any) for the
Extension Period, whether or not tendered for repayment.
4. If the Company elects to extend the maturity of an Extendible
Note, the holder of such Note will have the option to require the Company to
repay such Note on the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid interest to such date,
unless such Note is an Original Issue Discount Note, in which case the
applicable Pricing Certificate will specify the amount payable upon such
repayment. In order for an Extendible Note to be repaid on such Maturity Date,
the holder thereof must follow the procedures set forth below under "Repayment
at the Noteholders' Option; Repurchase" for optional repayment, except that the
period for delivery of such Note or notification to the Paying Agent shall be at
least 25 but not more than 35 days prior to the Maturity Date then in effect and
except that a holder who has tendered an Extendible Note for repayment pursuant
to an Extension Notice may, by written notice to the Paying Agent, revoke any
such tender for repayment until 3:00 P.M., New York City time, on the twentieth
calendar day prior to the Maturity Date then in effect (or, if such day is not a
Business Day, until 3:00 P.M., New York City time, on the immediately succeeding
Business Day).
I. BOOK-ENTRY SYSTEM
Upon issuance, all Fixed Rate Global Notes having the same Issue Date,
interest rate, if any, amortization schedule, if any, maturity date and other
terms, if any, will be represented by one or more Global Securities, and all
Floating Rate Global Notes having the same Issue Date, Initial Interest Rate,
Base Rate, Interest Reset Period, Interest Payment Dates, Index Maturity, Spread
and/or Spread Multiplier, if any, Minimum Interest Rate, if any, Maximum
Interest Rate, if any, maturity date and other terms, if any, will be
represented by one or more Global Securities. Each Global Security representing
Global Notes will be deposited with, or on behalf of, The Depository Trust
Company, New York, New York (the "Depository"), and registered in the name of a
nominee of the Depository. Global Notes will not be exchangeable for Definitive
Notes, except as set forth in the Indenture. Definitive Notes will not be
exchangeable for Global Notes and will not otherwise be issuable as Global
Notes.
A-13
<PAGE>
J. OPTIONAL REDEMPTIONS
The Pricing Certificate will indicate that the Notes cannot be redeemed
prior to maturity or will indicate the terms on which the Notes will be
redeemable at the option of the Company. Notice of redemption will be provided
by mailing a notice of such redemption to each holder by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to the respective address of each holder as that address
appears upon the books maintained by the Paying Agent. Unless otherwise provided
in the applicable Pricing Certificate, the Notes, except for Amortizing Notes,
will not be subject to any sinking fund.
K. REPAYMENT AT THE NOTEHOLDERS' OPTION; REPURCHASE
1. If applicable, the Pricing Certificate relating to each Note will
indicate that the Note will be repayable at the option of the holder on a date
or dates specified prior to its maturity date and, unless otherwise specified in
such Pricing Certificate, at a price equal to 100% of the principal amount
thereof, together with accrued interest to the date of repayment, unless such
Note is an Original Issue Discount Note, in which case the Pricing Certificate
will specify the amount payable upon such repayment.
2. In order for such a Note to be repaid, the Paying Agent must receive
at least 30 days but not more than 60 days prior to the repayment date (i) the
Note with the form entitled "Option to Elect Repayment" on the reverse of the
Note duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the holder of the Note, the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of the Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Note, will be
received by the Paying Agent not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter, provided,
however, that such telegram, telex, facsimile transmission or letter shall only
be effective if such Note and form duly completed are received by the Paying
Agent by such fifth Business Day. Except in the case of Renewable Notes or
Extendible Notes, and unless otherwise specified in the applicable Pricing
Certificate, exercise of the repayment option by the holder of a Note will be
irrevocable. The repayment option may be exercised by the holder of a Note for
less than the principal amount of the Note but, in that event, the principal
amount of the Note remaining outstanding after repayment must be an Authorized
Denomination.
3. If a Note is represented by a Global Security, the Depository's
nominee will be the holder of such Note and therefore will be the only entity
that can exercise a right to repayment. In order to ensure that the Depository's
nominee will timely exercise a right to repayment with respect to a particular
Note, the beneficial owner of such Note must instruct the broker or other direct
or indirect participant through which it holds an interest in such Note to
notify the Depository of its desire to exercise a right to repayment. Different
firms have different deadlines for accepting instructions from their customers
and, accordingly, each beneficial owner should consult the broker or other
direct or indirect participant through which it holds an interest in a Note in
order to ascertain the deadline by which such an instruction must be given in
order for timely notice to be delivered to the Depository.
4. The Company may purchase Notes at any price in the open market or
otherwise. Notes so purchased by the Company may, at the discretion of the
Company, be held or resold or surrendered to the relevant Trustee for
cancellation.
A-14
<PAGE>
Exhibit 4-c
[FORM OF FACE OF SECURITY]
Floating Rate Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
<TABLE>
<CAPTION>
FMC CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
- -----------------------------------------------------------------------------
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: ORIGINAL MATURITY DATE:
- -----------------------------------------------------------------------------
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT
DATE(S):
- -----------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- -----------------------------------------------------------------------------
INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
- -----------------------------------------------------------------------------
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
- -----------------------------------------------------------------------------
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
- -----------------------------------------------------------------------------
INDEX CURRENCY: INITIAL REDEMPTION SPECIFIED CURRENCY:
DATE:
- -----------------------------------------------------------------------------
APPLICABILITY OF INITIAL REDEMPTION TOTAL AMOUNT OF OID:
ISSUER'S OPTION TO PERCENTAGE:
EXTEND ORIGINAL MATURITY
DATE:
- -----------------------------------------------------------------------------
If yes, state final ANNUAL REDEMPTION ORIGINAL YIELD TO
Maturity Date: PERCENTAGE REDUCTION: MATURITY:
- -----------------------------------------------------------------------------
OTHER PROVISIONS: OPTIONAL REPAYMENT INITIAL ACCRUAL PERIOD
DATE(S): OID:
- -----------------------------------------------------------------------------
</TABLE>
- -------------------------
* Applies only if this Note is a Registered Global Security.
<PAGE>
FMC Corporation, a Delaware corporation (together with its successors
and assigns, the "Issuer"), for value received, hereby promises to pay to
, or registered assignees, the principal sum of
on the Original Maturity Date specified above or, if the maturity hereof is
extended in accordance with the procedures set forth below to an Extended
Maturity Date, as defined below, on such Extended Maturity Date (except to the
extent previously redeemed or repaid) and to pay interest thereon, from the
Interest Accrual Date specified above at a rate per annum equal to the Initial
Interest Rate specified above until the Initial Interest Reset Date specified
above, and thereafter at a rate per annum determined in accordance with the
provisions specified on the reverse hereof until the principal hereof is paid or
duly made available for payment. The Issuer will pay interest in arrears
monthly, quarterly, semiannually or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above), commencing
with the first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date; and provided, further, that
if an Interest Payment Date (other than the Maturity Date or redemption or
repayment date) would fall on a day that is not a Business Day, as defined on
the reverse hereof, such Interest Payment Date shall be the following day that
is a Business Day, except that if the Base Rate specified above is LIBOR and
such next Business Day falls in the next calendar month, such Interest Payment
Date shall be the immediately preceding day that is a Business Day; and
provided, further, that if the Maturity Date or redemption or repayment date
would fall on a day that is not a Business Day, such payment shall be made on
the following day that is a Business Day and no interest shall accrue for the
period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from the most recent date to which
interest has been paid or duly provided for, or, if no interest has been paid or
duly provided for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to such
Interest Payment Date (whether or not a Business Day) (each such date a "Record
Date"); provided,
-2-
<PAGE>
however, that interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the principal hereof shall
be payable.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any redemption or repayment date) will be made in
immediately available funds upon surrender of this Note at the office or agency
of the Paying Agent, as defined on the reverse hereof, maintained for that
purpose at 111 West Monroe Street, Chicago, Illinois 60603, or at such other
paying agency as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar payments of
interest, other than interest due at maturity or any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the person
entitled thereto as such address shall appear in the Note register. A holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity or any date of redemption or repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date. If this Note is a
Global Note, then (a) payments of interest will be made by wire transfer of
immediately available funds to DTC and (b) if this Note is denominated in a
Specified Currency other than U.S. dollars, payments of principal, premium, if
any, and interest hereon will be made by wire transfer of immediately available
funds to an account maintained by a beneficial holder hereof with a bank located
outside the United States if appropriate wire transfer instructions have been
received by the participant through which its interest is held on or prior to
the applicable Record Date, in the case of a payment of interest, and on or
prior to the sixteenth day prior to maturity, in the case of a payment of
principal or premium, such participant has notified DTC on or prior to the third
Business Day after such date and DTC has notified the Paying Agent on or prior
to the fifth Business Day after such date, such notice in each case to be
accompanied by the appropriate payment instructions. If such notice and wire
transfer instructions are not so received, such beneficial owner will receive
payment in U.S. dollars.
Reference is hereby made to the further provisions of this Note 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 Note
shall not be entitled to any benefit under the
-3-
<PAGE>
Indenture, as defined on the reverse hereof, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: FMC CORPORATION
By:
----------------------------------
Title:
[CORPORATE SEAL] By:
----------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
HARRIS TRUST AND SAVINGS
BANK, as Trustee
By
---------------------------------
Authorized Officer
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<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes,
Series A, having maturities more than nine months from the date of issue (the
"Notes"), of the Issuer. The Notes are issuable under an Indenture dated as of
July 1, 1996 (as amended, supplemented or modified, the "Indenture") between the
Issuer and Harris Trust and Savings Bank, as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Harris Trust and Savings Bank at its
corporate trust office in Chicago, Illinois as the paying agent (the "Paying
Agent," which term includes any additional or successor Paying Agent appointed
by the Issuer) with respect to the Notes. The terms of individual Notes may vary
with respect to interest rates, interest rate formulas, issue dates, maturity
dates, or otherwise, all as provided in the Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby incorporated by
reference herein.
This Note is represented by a Global Note deposited with, or on behalf
of DTC and registered in the name of a nominee of DTC. Except as set forth
herein, this Note shall be available for purchase in book-entry form only. So
long as DTC or its nominee is the registered owner of the Global Note, DTC or
such nominee, as the case may be, will be considered the sole owner or holder of
this Note represented by the Global Note for all purposes under the Indenture.
Unless and until certificated Notes are issued in exchange for the Global Note,
no beneficial owner of a Note shall be entitled to receive a definitive
certificate representing this Note. Upon such exchange, Notes in definitive form
shall be issued in registered form only, without coupons, in denominations of
$1,000 and integral multiples thereof.
If at any time DTC notifies the Issuer that it is unwilling or unable
to continue as depository for the Notes or if at any time DTC shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor depository is
not appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such condition, as the case may be, the Issuer will execute,
and the Trustee will authenticate and deliver, Notes in definitive registered
form in an aggregate principal amount equal to the principal amount of the
Global Note in exchange for the Global Note. In addition, the Issuer may at any
time determine that some or all of the Notes shall no longer be represented by a
Global Note. In such event, the Issuer will execute and the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the Issuer,
will authenticate and deliver Notes in definitive form, in authorized
denominations, (i) to the Person specified by DTC equal to and in exchange for
such
-5-
<PAGE>
Person's beneficial interest in the Global Note and (ii) to DTC a new Global
Note in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Note and the aggregate principal amount of
definitive Notes delivered to Holders thereof, or interests in applicable
portions thereof. Upon the exchange of the Global Note for all Notes in
definitive form, in authorized denominations, the surrendered Global Note shall
be cancelled by the Trustee. Notes in definitive registered form issued in
exchange for the Global Note or portion thereof shall be issued in such
authorized denominations as DTC, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Persons in whose name such Notes are so
registered.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. If so indicated on the face of this
Note, this Note may be redeemed in whole or in part at the option of the Issuer
on or after the Initial Redemption Date specified on the face hereof on the
terms set forth on the face hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). If this Note is
subject to "Annual Redemption Percentage Reduction," the Initial Redemption
Percentage indicated on the face hereof will be reduced on each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100% of
the principal amount hereof, together with interest accrued and unpaid hereon to
the date of redemption (except as provided below). Notice of redemption shall be
mailed to the registered holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
Notwithstanding the foregoing, this Note may be redeemed in accordance
with the terms of any Extension Notice, as defined below, sent to the holder
hereof as described below.
Unless otherwise indicated on the face of this Note, this Note shall
not be subject to repayment at the option of the holder prior to the Maturity
Date. If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
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<PAGE>
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Paying Agent
must receive at its corporate trust office at 111 West Monroe Street, Chicago,
Illinois 60603, at least 30 but not more than 60 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust company
in the United States setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note, together with the form entitled "Option to Elect
Repayment" duly completed, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day. Exercise
of such repayment option by the holder hereof shall be irrevocable. In the event
of repayment of this Note in part only, a new Note or Notes for the amount of
the unpaid portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "Extension Period") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
spread and spread multiplier, if applicable, and new redemption provisions for
the Extension Period.
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to the
maturity date then in effect (an "Extended Maturity Date"). No later than 38
days prior to the Original Maturity Date or an Extended Maturity Date, as the
case may be (each, a "Maturity Date"), the Paying Agent will mail to the holder
hereof a notice (the "Extension Notice") relating to such Extension Period, by
first class mail, postage prepaid, setting forth (a) the election of the Issuer
to extend the maturity of this Note; (b) the new Extended Maturity Date; (c) the
spread and spread multiplier, if applicable, to the Extension Period; and (d)
the
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<PAGE>
provisions, if any, for redemption during the Extension Period, including the
date or dates on which, the period or periods during which and the price or
prices at which such redemption may occur during the Extension Period. Upon the
mailing by the Paying Agent of an Extension Notice to the holder of this Note,
the maturity hereof shall be extended automatically, and, except as modified by
the Extension Notice and as described in the next paragraph, this Note will have
the same terms it had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York
City time, on the twentieth calendar day prior to the Maturity Date then in
effect (or if such day is not a Business Day, not later than 10:00 A.M., New
York City time, on the immediately succeeding Business Day), the Issuer may, at
its option, revoke the interest rate provided for in the Extension Notice and
establish a higher spread and/or spread multiplier, if applicable, for the
Extension Period by causing the Paying Agent to send notice of such higher
spread and/or spread multiplier, if applicable, to the holder of this Note by
first class mail, postage prepaid, or by such other means as shall be agreed
between the Issuer and the Paying Agent. Such notice shall be irrevocable. All
Notes with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher spread and/or spread multiplier, if
applicable, for the Extension Period, whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date then in effect at a price equal to the principal amount hereof
plus any accrued and unpaid interest to such date, unless this Note is an
Original Issue Discount Note, in which case the applicable Pricing Supplement
will specify the amount payable upon such repayment. In order for this Note to
be so repaid on such Maturity Date, the holder hereof must follow the procedures
set forth above for optional repayment, except that the period for delivery of
this Note or notification to the Paying Agent shall be at least 25 but not more
than 35 days prior to the Maturity Date then in effect and except that if the
holder hereof has tendered this Note for repayment pursuant to this paragraph he
may, by written notice to the Paying Agent, revoke any such tender for repayment
until 3:00 P.M., New York City time, on the twentieth calendar day prior to the
Maturity Date then in effect (or, if such day is not a Business Day, until 3:00
P.M., New York City time, on the immediately succeeding Business Day).
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date
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(as used herein, the term "Interest Reset Date" shall include the Initial
Interest Reset Date). The Interest Reset Dates will be the Interest Reset Dates
specified on the face hereof; provided, however, that the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a Business Day, except that if the
Base Rate specified on the face hereof is LIBOR and such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day. As used herein, "Business Day" means any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York or Chicago, Illinois and (i) if this Note bears interest
calculated by reference to LIBOR that is also a London Banking Day, (ii) if this
Note is denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (iii) if this Note is denominated in Australian dollars, in
Sydney and (iv) if this Note is denominated in ECUs, that is not a non-ECU
clearing day, as determined by the ECU Banking Association in Paris. As used
herein, "London Banking Day" means any day on which dealings in deposits in the
Index Currency (as defined herein) are transacted in the London interbank
market.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to LIBOR shall be the second London Banking Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the Treasury
Rate shall be the day of the week in which such Interest Reset Date falls on
which Treasury bills normally would be auctioned; provided, however, that if as
a result of a legal holiday an auction is held on the Friday of the week
preceding such Interest Reset Date, the related Interest Determination Date
shall be such preceding Friday; and provided, further, that if an auction shall
fall on any Interest Reset Date, then the Interest Reset Date shall instead be
the first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
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<PAGE>
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates," or any successor
publication of the Board of Governors of the Federal Reserve System
("H.15(519)"), under the heading "CDS (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations for
U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination Date
for certificates of deposit in an amount that is representative for a single
transaction at that time with a remaining maturity closest to the Index Maturity
specified on the face hereof of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money center banks; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate in effect for the applicable period will be the same as the CD Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the Commercial Paper Rate, the Commercial Paper Rate with
respect to this Note shall be determined on each Interest Determination Date and
shall be the Money Market Yield (as defined herein) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof, as such
rate shall be published in H.15(519) under the heading "Commercial Paper," or if
not so published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Commercial Paper Rate shall
be the Money Market Yield of the rate on such Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as published
in Composite Quotations under the heading "Commercial Paper." If neither of such
rates is published by 3:00 P.M., New York City time, on such Calculation Date,
then the Commercial Paper Rate shall be the Money Market Yield of the arithmetic
mean of the offered rates as of 11:00 A.M., New York City time, on such
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Interest Determination Date of three leading dealers in commercial paper in The
City of New York selected by the Calculation Agent for commercial paper of the
Index Maturity specified on the face hereof, placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
statistical rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting offered rates as mentioned in
this sentence, the Commercial Paper Rate in effect for the applicable period
will be the same as the Commercial Paper Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate specified on the
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 9:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers of Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate in
effect for the applicable period will be the same as the Federal Funds Rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face hereof
is LIBOR, LIBOR with respect to this Note shall be determined on each Interest
Determination Date as follows:
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(i) As of the Interest Determination Date, LIBOR will mean either (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR Page
(as defined below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the Index Currency (as defined
below) for the period of the Index Maturity specified on the face hereof,
commencing on the second London Banking Day immediately following such Interest
Determination Date, which appear on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency for the
period of the Index Maturity, commencing on the second London Banking Day
immediately following such Interest Determination Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such Interest
Determination Date. If fewer than two offered rates appear (if "LIBOR Reuters"
is specified as the Reporting Service on the face hereof) or if no rate appears
(if the Reporting Service on the face hereof specifies "LIBOR Telerate"), LIBOR
in respect of that Interest Determination Date will be determined as if the
parties had specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified as the Reporting
Service on the face hereof) or no rate appears (if the Reporting Service on the
face hereof specifies "LIBOR Telerate"), the Calculation Agent will request the
principal London offices of each of four major reference banks in the London
interbank market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotations for deposits in the Index Currency
for the period of the Index Maturity specified on the face hereof, commencing on
the second London Banking Day immediately following such Interest Determination
Date, to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such Interest Determination Date and in a principal amount of
not less than U.S. $l million (or the equivalent in the Index Currency, if the
Index Currency is not U.S. dollars) that is representative of a single
transaction in such Index Currency in such market at such time. If at least two
such quotations are provided, LIBOR will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in respect of that
Interest Determination Date will be the arithmetic mean of rates quoted at
approximately 11:00 A.M. (or such other time specified on the face hereof), in
the applicable principal financial center for the country of the Index Currency
on such Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent for loans
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in the Index Currency to leading European banks, for the period of the
Index Maturity specified on the face hereof and in a principal amount of
not less than U.S. $1 million commencing on the second London Banking Day
immediately following such Interest Determination Date (or the equivalent
in the Index Currency, if the Index Currency is not U.S. dollars) that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, "LIBOR" for such Interest Reset Period will be the same as LIBOR
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable on the LIBOR Notes
for which LIBOR is being determined shall be the Initial Interest Rate).
"Index Currency" means the currency (including composite currencies)
specified as Index Currency on the face hereof. If no such currency is
specified as Index Currency on the face hereof, the Index Currency shall be
U.S. dollars. "Designated LIBOR Page" means either (a) if "LIBOR Reuters"
is designated as the Reporting Service on the face hereof, the display on
the Reuters Monitor Money Rates Service for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency, or
(b) if "LIBOR Telerate" is designated as the Reporting Service on the face
hereof, the display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the applicable
Index Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified as
the Reporting Service on the face hereof, LIBOR for the applicable Index
Currency will be determined as if LIBOR Telerate had been specified. If the
U.S. dollar is the Index Currency, LIBOR will be determined as if Page 3750
had been specified. "Page 3750" means the display designated as page "3750"
on the Dow Jones Telerate Service (or such other page as may replace the
3750 page on that service or such other service) or services as may be
nominated by the British Bankers' Association for the purposes of
displaying London interbank offered rates for U.S. dollar deposits.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is the Prime Rate, the Prime Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate set forth
in H.15(519) for such date opposite the caption "Bank Prime Loan." If such rate
is not yet published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Prime Rate for such Interest
Determination Date will be the arithmetic mean of the rates of interest publicly
announced by each bank named on the Reuters Screen NYMF Page (as defined below)
as such bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Interest
Determination Date, or, if fewer than four such rates appear on the Reuters
Screen NYMF Page for such Interest
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<PAGE>
Determination Date, the rate shall be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days in the year divided by 360 as
of the close of business on such Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the Calculation
Agent and shall be determined as the arithmetic mean on the basis of the prime
rates in The City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, in each case having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such rate
or rates; provided, that if the banks or trust companies selected as aforesaid
are not quoting as mentioned in this sentence, the "Prime Rate" for such
Interest Reset Period will be the same as the Prime Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen NYMF Page" means the display designated as Page "NYMF" on the
Reuters Monitor Money Rates Service (or such other page as may replace the NYMF
Page on that service for the purpose of displaying prime rates or base lending
rates of major United States banks).
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is the Treasury Rate, the Treasury Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate for the
auction held on such date of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified on the face hereof, as published in
H.15(519) under the heading "Treasury Bills auction average (investment)" or if
not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the auction average rate on such
Interest Determination Date (expressed as a bond equivalent, on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified on the face hereof are not published or reported as provided
above by 3:00 P.M. New York City time, on such Calculation Date or if no such
auction is held on such Interest Determination Date, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) calculated using the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent
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are not quoting bid rates as mentioned in this sentence, the Treasury Rate for
such Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of CMT Rate. If the Base Rate is the CMT Rate as
specified on the face hereof, "CMT Rate" means with respect to any Interest
Determination Date, the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption " ... Treasury Constant Maturities ... Federal
Reserve Board Release H.15 ... Mondays Approximately 3:45 P.M." under the column
for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the week or the
month, as applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such Interest Determination Date
will be such Treasury Constant Maturity rate for the Designated CMT Maturity
Index as is published in the relevant H.15(519). If such rate is no longer
published, or, if not published by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such Interest Determination Date, will
be such Treasury Constant Maturity rate for the Designated CMT Maturity Index
(or other United States Treasury rate for the Designated CMT Maturity Index) for
the Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time on the Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Company, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury notes quotations, the CMT Rate for such
Interest Determination Date will be calculated by the
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<PAGE>
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100,000,000. If three or four (and not five)
of such Reference dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers selected by the Calculation Agent are
quoting as described herein, the CMT Rate for such Interest Reset Date will be
the same as the CMT Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable on
this Note for which the CMT Rate is being determined shall be the Initial
Interest Rate). If two Treasury notes with an original maturity as described in
the second preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in an applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified in the applicable Pricing Supplement, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in an applicable Pricing Supplement with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by Illinois law, as the same may be modified by
United States Federal law of general application.
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At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next Interest
Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon shall
be an amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding the
interest factors calculated for each day in the period for which interest is
being paid. The interest factor for each such day shall be computed by dividing
the interest rate applicable to such day by 360 if the Base Rate is the CD Rate,
the Commercial Paper Rate, the Federal Funds Rate, the Prime Rate or LIBOR, as
specified on the face hereof, or by the actual number of days in the year if the
Base Rate is the Treasury Rate or the CMT Rate, as specified on the face hereof.
All percentages used in or resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one hundred-
thousandth of a percentage point, with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent, with one-half cent
rounded upward. The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to any
other day is the interest rate from the immediately preceding Interest Reset
Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
and any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified Currency,
as determined by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the Commission
of the European Communities
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<PAGE>
(or any successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, on the Business Day immediately
preceding the date of issuance.
The Indenture permits the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each series
so affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby, (a)
extend the final maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected; or
(b) reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture,
without the consent of the holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of the
Market Exchange Rate on the date of such payment or, if the Market Exchange Rate
is not available on such date, as of the most recent practicable date. Any
payment made under such circumstances in U.S. dollars where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an Event
of Default.
If payment in respect of this Note is required to be made in ECUs and
ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's control or are no longer used in the European
Community, then all payments in respect of this Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of each payment in
U.S. dollars shall be computed on the basis of the equivalent of the ECU in U.S.
dollars, determined as described below, as of the second Business Day prior to
the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Issuer or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of
-18-
<PAGE>
the ECU as of the last date on which the ECU was used in the European Monetary
System. The equivalent of the ECU in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Components. The U.S. dollar
equivalent of each of the Components shall be determined by the Issuer or such
agent on the basis of the most recently available Market Exchange Rates for such
Components.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
All determinations referred to above made by the Issuer or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Indenture and this Note shall be deemed to be contracts made under
the internal laws of the State of Illinois (without regard to conflicts of laws
provisions thereof) and for all purposes shall be governed by and construed in
accordance with the laws of such State.
-19-
<PAGE>
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
-20-
<PAGE>
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.
----------------------
-21-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
- ----------------
!
!
- ---------------- --------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________ attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:
--------------------- --------------------------------------
Signature
Signature Guaranteed By:
- -----------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
-22-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
_________________________; and specify the denomination or denominations (which
shall not be less than the minimum Authorized Denomination) of the Notes to be
issued to the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid): _____________________________.
Dated:
---------------- ---------------------------------------------
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as
written upon the face of the within
instrument in every particular without
alteration or enlargement.
-23-
<PAGE>
[FORM OF FACE OF SECURITY]
Fixed Rate Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP:*
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
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 since the registered owner hereof,
Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
FMC CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: ORIGINAL
DATE: MATURITY
DATE:
- --------------------------------------------------------------------------------
INTEREST ACCRUAL INITIAL REDEMPTION OPTIONAL
DATE: PERCENTAGE: REPAYMENT
DATES(S):
- --------------------------------------------------------------------------------
TOTAL AMOUNT OF OID: ANNUAL REDEMPTION
PERCENTAGE
REDUCTION:
- --------------------------------------------------------------------------------
ORIGINAL YIELD TO SPECIFIED CURRENCY:
MATURITY:
- --------------------------------------------------------------------------------
INITIAL ACCRUAL
PERIOD OID:
- --------------------------------------------------------------------------------
</TABLE>
- --------------------------
* Applies only if this Note is a Registered Global Security.
<PAGE>
<TABLE>
<S> <C> <C> <C>
APPLICABILITY OF APPLICABILITY OF
ISSUER'S OPTION TO ANNUAL INTEREST
EXTEND ORIGINAL PAYMENTS
MATURITY DATE:
- --------------------------------------------------------------------------------
If yes, state Final
Maturity Date:
- --------------------------------------------------------------------------------
OTHER PROVISIONS:
- --------------------------------------------------------------------------------
</TABLE>
FMC Corporation, a Delaware corporation (together with its successors
and assigns, the "Issuer"), for value received, hereby promises to pay to
, or registered assignees, the principal sum of
, on the Original Maturity Date specified above or, if the
maturity hereof is extended in accordance with the procedures set forth below to
an Extended Maturity Date, as defined below, on such Extended Maturity Date
(except to the extent previously redeemed or repaid) and to pay interest thereon
at the Interest Rate per annum specified above or, if the interest rate hereon
is reset or reestablished in connection with an extension of maturity in
accordance with the procedures specified on the reverse hereof, at the interest
rate per annum determined pursuant to such procedures, from the Interest Accrual
Date specified above until the principal hereof is paid or duly made available
for payment (except as provided below), semiannually in arrears on the first day
of and in each year (each such date an "Interest
Payment Date") commencing with the first Interest Payment Date next succeeding
the Interest Accrual Date specified above, and on the Maturity Date (or any
redemption or repayment date); provided, however, that if the Interest Accrual
Date occurs between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Interest Accrual Date to the registered holder of
this Note on the Record Date with respect to such second Interest Payment Date;
and provided, further, that if this Note is subject to "Annual Interest
Payments," interest payments shall be made annually in arrears and the term
"Interest Payment Date" shall be deemed to mean the first day of in
each year.
[note: modify for amortizing notes]
Interest on this Note will accrue from the most recent date to which
interest has been paid or duly provided for, or, if no interest has been paid or
duly provided for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more
2
<PAGE>
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that interest payable
on the Maturity Date (or on any redemption or repayment date) will be payable to
the person to whom the principal hereof shall be payable. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or required
by law or regulation to close in The City of New York or Chicago, Illinois and
(i) if this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or European Currency Units ("ECUs"), in the principal
financial center of the country of the Specified Currency, (ii) if this Note is
denominated in Australian dollars, in Sydney and (iii) if this Note is
denominated in ECUs, that is not a non-ECU clearing day, as determined by the
ECU Banking Association in Paris.
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made in
immediately available funds upon surrender of this Note at the office or agency
of the Paying Agent, as defined on the reverse hereof, maintained for that
purpose at 111 West Monroe Street, Chicago, Illinois 60603, or at such other
paying agency as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar payments of
interest, other than interest due at maturity or on any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the person
entitled thereto as such address shall appear in the Note register. A holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity or on any date of redemption or repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date. If this Note is a
Global Note, then (a) payments of interest will be made by wire transfer of
immediately available funds to DTC and (b) if this Note is denominated in a
Specified Currency other than U.S. dollars, payments of principal, premium, if
any, and interest hereon will be made by wire transfer of immediately available
funds to an account maintained by a beneficial holder hereof with a bank located
outside the United States if appropriate wire transfer instructions have been
received by the participant through which its interest is held on or prior to
the applicable Record Date, in the case of a payment of interest, and on or
prior to the sixteenth day prior to maturity, in the case of a payment of
principal or premium, such participant has notified DTC on or prior to the third
Business Day after such date and DTC has notified the Paying Agent on or prior
to the fifth Business Day after such date, such notice in each case
3
<PAGE>
to be accompanied by the appropriate payment instructions. If such notice and
wire transfer instructions are not so received, such beneficial owner will
receive payment in U.S. dollars.
Reference is hereby made to the further provisions of this Note 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 Note
shall not be entitled to any benefit under the Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: FMC CORPORATION
By:
----------------------------------
Title:
[CORPORATE SEAL] By:
----------------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
HARRIS TRUST AND SAVINGS
BANK, as Trustee
By:
--------------------------------
Authorized Officer
5
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes,
Series A, having maturities more than nine months from the date of issue (the
"Notes"), of the Issuer. The Notes are issuable under an Indenture dated as of
July 1, 1996 (as amended, supplemented or modified from time to time, the
"Indenture") between the Issuer and Harris Trust and Savings Bank, as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities of the Issuer, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Harris Trust and Savings
Bank at its corporate trust office in Chicago, Illinois as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying Agent
appointed by the Issuer) with respect to the Notes. The terms of individual
Notes may vary with respect to interest rates, interest rate formulas, issue
dates, maturity dates, or otherwise, all as provided in the Indenture. To the
extent not inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
This Note is represented by a Global Note deposited with, or on behalf
of DTC and registered in the name of a nominee of DTC. Except as set forth
herein, this Note shall be available for purchase in book-entry form only. So
long as DTC or its nominee is the registered owner of the Global Note, DTC or
such nominee, as the case may be, will be considered the sole owner or holder of
this Note represented by the Global Note for all purposes under the Indenture.
Unless and until certificated Notes are issued in exchange for the Global Note,
no beneficial owner of a Note shall be entitled to receive a definitive
certificate representing this Note. Upon such exchange, Notes in definitive form
shall be issued in registered form only, without coupons, in denominations of
$1,000 and integral multiples thereof.
If at any time DTC notifies the Issuer that it is unwilling or unable
to continue as depository for the Notes or if at any time DTC shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor depository is
not appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such condition, as the case may be, the Issuer will execute,
and the Trustee will authenticate and deliver, Notes in definitive registered
form in an aggregate principal amount equal to the principal amount of the
Global Note in exchange for the Global Note. In addition, the Issuer may at any
time determine that some or all of the Notes shall no longer be
6
<PAGE>
represented by a Global Note. In such event, the Issuer will execute and the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Issuer, will authenticate and deliver Notes in definitive form, in
authorized denominations, (i) to the Person specified by DTC equal to and in
exchange for such Person's beneficial interest in the Global Note and (ii) to
DTC a new Global Note in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Note and the aggregate principal
amount of definitive Notes delivered to Holders thereof, or interests in
applicable portions thereof. Upon the exchange of the Global Note for all Notes
in definitive form, in authorized denominations, the surrendered Global Note
shall be cancelled by the Trustee. Notes in definitive registered form issued in
exchange for the Global Note or portion thereof shall be issued in such
authorized denominations as DTC, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Persons in whose name such Notes are so
registered.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. If so indicated on the face of this
Note, this Note may be redeemed in whole or in part at the option of the Issuer
on or after the Initial Redemption Date specified on the face hereof on the
terms set forth on the face hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). If this Note is
subject to "Annual Redemption Percentage Reduction," the Initial Redemption
Percentage indicated on the face hereof will be reduced on each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100% of
the principal amount hereof, together with interest accrued and unpaid hereon to
the date of redemption (except as provided below). Notice of redemption shall be
mailed to the registered holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
7
<PAGE>
Notwithstanding the foregoing, this Note may be redeemed in accordance
with the terms of any Extension Notice, as defined below, sent to the holder
hereof as described below.
Unless otherwise indicated on the face of this Note, this Note may not
be subject to repayment at the option of the holder prior to the Maturity Date.
If so indicated on the face of this Note, this Note will be subject to repayment
at the option of the holder on the Optional Repayment Date or Dates specified on
the face hereof on the terms set forth herein. On any Optional Repayment Date,
this Note will be repayable in whole or in part in increments of $1,000 or, if
this Note is denominated in a Specified Currency other than U.S. dollars, in
increments of 1,000 units of such Specified Currency (provided that any
remaining principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Paying Agent must receive at its
corporate trust office at 111 West Monroe Street, Chicago, Illinois 60603, at
least 30 but not more than 60 days prior to the date of repayment, (i) this Note
with the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States setting forth
the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor and terms,
the principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Paying Agent not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter; provided, that
such telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Paying Agent by such
fifth Business Day. Exercise of such repayment option by the holder hereof shall
be irrevocable. In the event of repayment of this Note in part only, a new Note
or Notes for the amount of the unpaid portion hereof shall be issued in the name
of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "Extension Period") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
interest rate and new redemption provisions for the Extension Period.
8
<PAGE>
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to the
maturity date then in effect (an "Extended Maturity Date"). No later than 38
days prior to the Original Maturity Date or an Extended Maturity Date, as the
case may be (each, a "Maturity Date"), the Paying Agent will mail to the holder
hereof a notice (the "Extension Notice") relating to such Extension Period, by
first class mail, postage prepaid, setting forth (a) the election of the Issuer
to extend the maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the provisions, if
any, for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of this Note, the maturity hereof
shall be extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, this Note will have the same terms it
had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York
City time, on the twentieth calendar day prior to the Maturity Date then in
effect (or if such day is not a Business Day, not later than 10:00 A.M., New
York City time, on the immediately succeeding Business Day), the Issuer may, at
its option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Paying
Agent to send notice of such higher interest rate to the holder of this Note by
first class mail, postage prepaid, or by such other means as shall be agreed
between the Issuer and the Paying Agent. Such notice shall be irrevocable. All
Notes with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate for the Extension Period,
whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date then in effect at a price equal to the principal amount hereof
plus any accrued and unpaid interest to such date, unless this Note is an
Original Issue Discount Note, in which case the applicable Pricing Supplement
will specify the amount payable upon such repayment. In order for this Note to
be so repaid on such Maturity Date, the holder hereof must follow the procedures
set forth above for optional repayment, except that the period for delivery of
this Note or notification to the Paying Agent shall be at least 25 but not more
than 35 days prior to the Maturity Date then in effect and except that if the
holder hereof has tendered this Note for repayment pursuant to this paragraph he
may, by written notice to the Paying Agent, revoke any
9
<PAGE>
such tender for repayment until 3:00 P.M., New York City time, on the twentieth
calendar day prior to the Maturity Date then in effect (or, if such day is not a
Business Day, until 3:00 P.M., New York City time, on the immediately succeeding
Business Day).
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
and any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified Currency,
as determined by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the Commission
of the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities, or any successor publication, on
the Business Day immediately preceding the date of issuance.
10
<PAGE>
The Indenture permits the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each series
so affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby, (a)
extend the final maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected; or
(b) reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture,
without the consent of the holders of each debt security so affected.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of the
Market Exchange Rate on the date of such payment or, if the Market Exchange Rate
is not available on such date, as of the most recent practicable date. Any
payment made under such circumstances in U.S. dollars where the required payment
is in a Specified Currency other than U.S. dollars will not constitute an Event
of Default.
If payment in respect of this Note is required to be made in ECUs and
ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's control or are no longer used in the European
Community, then all payments in respect of this Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of each payment in
U.S. dollars shall be computed on the basis of the equivalent of the ECU in U.S.
dollars, determined as described below, as of the second Business Day prior to
the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Issuer or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the
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European Monetary System. The equivalent of the ECU in U.S. dollars shall be
calculated by aggregating the U.S. dollar equivalents of the Components. The
U.S. dollar equivalent of each of the Components shall be determined by the
Issuer or such agent on the basis of the most recently available Market Exchange
Rates for such Components.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
All determinations referred to above made by the Issuer or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Indenture and this Note shall be deemed to be contracts made under
the internal laws of the State of Illinois (without regard to conflicts of laws
provisions thereof) and for
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all purposes shall be governed by and construed in accordance with the laws of
such State.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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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.
-----------------
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ------------------------------------------!
!
- ------------------------------------------!----------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________ attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:
--------------------- ---------------------
Signature
Signature Guaranteed By:
- ---------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
____________________;and specify the denomination or denominations (which shall
not be less than the minimum Authorized Denomination) of the Notes to be issued
to the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid): __________________________________.
Dated:
-------------- ---------------------------------------
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement.
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EXHIBIT 10-a
January 24, 1997
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Gentlemen:
We have acted as special counsel to FMC Corporation, a Delaware
corporation ("FMC"), in connection with matters relating to the U.S.
Distribution Agreement, dated January 24, 1997, by and among FMC and the agents
named therein (the "Distribution Agreement"), pursuant to which FMC's Medium-
Term Notes, Series A, Due More than Nine Months from Date of Issuance (the
"Notes") are to be offered. The Notes are to be issued pursuant to the
provisions of an Indenture dated as of July 1, 1996 (the "Indenture") between
FMC and Harris Trust and Savings Bank, as Trustee (the "Trustee"). All
capitalized terms not defined herein shall have the meanings provided in the
Distribution Agreement.
In connection with rendering this opinion, we have examined: (a) the
Registration Statement on Form S-3 (Registration No. 33-62415) filed by FMC with
the Securities and Exchange Commission (the "Commission") on September 7, 1995
(the "Registration Statement"), Amendment No. 1 to the Registration Statement
filed by FMC with the Commission on November 1, 1995 and Amendment No. 2 to the
Registration Statement filed by FMC with the Commission on November 17, 1995;
(b) the Indenture; and (c) the Distribution Agreement.
Based upon the foregoing, we advise you that in our opinion, when the
terms of the Notes have been established by the Company in accordance with the
provisions of the Indenture, and when the Notes have been authenticated and
delivered by the Trustee, issued by FMC and delivered to and paid for by the
purchasers thereof, the Notes will constitute valid and binding obligations of
FMC, enforceable against FMC in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles regardless of whether such enforceability is considered in a
<PAGE>
FMC Corporation
January 24, 1997
Page 2
proceeding in equity or at law and will be entitled to the benefits of the
Indenture.
The foregoing opinion is limited to laws of the United States and the
State of Illinois and the General Corporation Law of the State of Delaware, and
we express no opinion with respect to the laws of any other state or
jurisdiction.
For purposes of this opinion, we have assumed the due authorization,
execution and delivery of the Indenture by the Trustee, the authenticity of all
documents submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies and that the signatures on all documents
examined by us are genuine.
We hereby consent to the incorporation by reference of this opinion to
the Registration Statement and to the use of our name in the Prospectus
Supplement relating to the Notes and constituting a part of the Registration
Statement. In giving this consent, we do not concede that we are experts within
the meaning of the Securities Act of 1933, as amended (the "Act"), or the rules
and regulations thereunder or that this consent is required by Section 7 of the
Act.
Very truly yours,
/s/ Winston & Strawn
