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UNITED STATES
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) November 17, 1995
Foster Wheeler Corporation
(Exact name of registrant as specified in its charter)
New York 1-286-2 13-1855904
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Perryville Corporate Park, Service Road East 173, Clinton, N.J. 08809-4000
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (908) 730-4000
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS.
Foster Wheeler Corporation (the "Company") hereby files with the
Securities and Exchange Commission (the "Commission") the form of Underwriting
Agreement between the Company and Lehman Brothers, Inc.
In addition, the Company hereby files with the Commission the form of
Indenture between the Company and Harris Trust and Savings Bank,
as Trustee.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
1. Form of Underwriting Agreement between the Company and
Lehman Brothers, Inc.
2. Form of Indenture between the Company and Harris Trust and Savings
Bank, as Trustee.
3. Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 of a Corporation Designated to Act as Trustee.
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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.
FOSTER WHEELER CORPORATION (Registrant)
Date: November 17, 1995 By /s/ David J. Roberts
---------------------------------
Name: David J. Roberts
Title: Vice Chairman,
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
<S> <C> <C>
EX - 1.1 Form of Underwriting Agreement between the Company
and Lehman Brothers, Inc.
EX - 4 Form of Indenture between the Company and Harris Trust and
Savings Bank, as Trustee.
EX - 25 Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 of a Corporation Designated to Act as Trustee.
</TABLE>
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EXHIBIT 1
November ,1995
$500,000,000
FOSTER WHEELER CORPORATION
(a New York Corporation)
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
UNDERWRITING AGREEMENT
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Foster Wheeler Corporation, a New York corporation (the
"Company"), proposes to issue and sell up to $500,000,000 of a combination of
the Company's (i) debt securities, consisting of debentures, notes or other
unsecured evidences of indebtedness (the "Debt Securities"), which may be
either senior debt securities or subordinated debt securities, (ii) shares of
preferred stock, no par value (the "Preferred Stock"), which may be issued in
the form of depositary receipts (the "Depositary Shares") representing a
fraction of a share of Preferred Stock, (iii) shares of common stock, $1.00 par
value (the "Common Stock" and, together with the Preferred Stock, the "Stock"),
and (iv) warrants to purchase securities of the Company as shall be designated
by the Company at the time of any offering of such warrants (the "Warrants" and
together with the Debt Securities, the Preferred Stock, the Depositary Shares,
the Common Stock and the Warrants, the "Offered Securities"), in one or more
offerings on the terms and conditions determined at the time of sale. The Debt
Securities will be issued pursuant to an indenture dated as of November __,
1995 (the "Indenture") between the
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Company and Harris Trust and Savings Bank as trustee (the "Trustee). The
Depositary Shares will be issued pursuant to the terms of a Deposit Agreement
(the "Deposit Agreement") to be entered into among the Company, the depositary
named in such agreement (the "Depositary"), and the holders from time to time
of Depositary Shares issued thereunder. The Depositary Shares will be
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
the Deposit Agreement. The shares of the Company's Preferred Stock relating to
the Depositary Shares are hereinafter referred to as the "Underlying Preferred
Shares." The Warrants will be issued pursuant to the provisions of one or more
Warrant Agreements (each a "Warrant Agreement" and collectively, the "Warrant
Agreements") between the Company and the Warrant Agent named in each such
agreement (the "Warrant Agent").
From time to time, the Company may enter into one or more
terms agreements (each a "Terms Agreement") that provide for the sale of such
designated Offered Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you", which
terms shall include the underwriter or underwriters named therein whether
acting alone in the sale of Offered Securities or as members of an underwriting
syndicate) and the provisions set forth herein (except for provisions which
relate to securities other than Offered Securities designated in the applicable
Terms Agreement) shall be incorporated by reference in any such Terms
Agreement. The applicable Terms Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement."
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
33-61809), including a prospectus relating to the Offered
Securities of the Company for the registration of such
securities under the United States Securities Act of 1933, as
amended (the "Securities Act"), has (i) been prepared by the
Company in material conformity with the requirements of the
Securities Act and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange
Commission
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(the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effec-
tive under the Securities Act; and, if the Offered Securities
are Debt Securities, the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Copies of such registration statement and
any amendments thereto have been delivered by the Company to
you. As used in this Agreement, "Effective Date" means the
date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Registration Statement"
means the registration statement as amended to the date of
this Agreement including all documents incorporated by
reference or deemed to be incorporated by reference therein
and the exhibits thereto; "Basic Prospectus" means the
prospectus included in the Registration Statement;
"Preliminary Prospectus" means any preliminary form of
Prospectus (as defined herein) specifically relating to
designated Offered Securities, in the form first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424 of the Rules and Regulations; "Prospectus Supplement"
means any prospectus supplement specifically relating to
designated Offered Securities, in the form first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act; "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement except that
if such Basic Prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement was first
filed pursuant to Rule 424, the term "Prospectus" shall refer
to the Basic Prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement; "Basic Prospectus,"
"Prospectus", "Preliminary Prospectus" and "Prospectus
Supplement" shall include in each case the documents, if any,
filed by the Company with the Commission pursuant to the
United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference therein; and
"supplement" and "amendment", shall
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be deemed to refer to and include any documents incorporated
by reference pursuant to Item 12 of Form S-3 under the
Securities Act that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant
to the Exchange Act. Any reference to any amendment to the
Registration Statement shall be deemed to include any annual
report of the Company filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective
Date that is incorporated by reference in the Registration
Statement.
(b) The Registration Statement conforms in all
material respects, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material
respects to the requirements of the Securities Act and the
Rules and Regulations thereunder and do not and will not, as
of the applicable Effective Date (as to the Registration
Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, (in the
case of the Prospectus, in light of the circumstances in which
they were made), not misleading; provided, however, that no
representation or warranty is made as to information contained
in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter specifically for use in the Registration Statement
or the Prospectus.
(c) If the Offered Securities are Debt
Securities: The Indenture conforms in all material respects
to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
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(d) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, when they were
filed with the Commission, conformed in all material respects
with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus on said dates, none of such documents contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein, not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and, when read together with the
Prospectus on said dates, will not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading.
(e) The Company and each of its significant
subsidiaries as such term is defined in Rule 405 of the Rules
and Regulations and identified on Schedule II hereto (each a
"Significant Subsidiary") have been duly incorporated and are
validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of
their respective businesses requires such qualification except
where the failure to be so qualified and in good standing
would not have a material adverse effect on the consolidated
financial condition, shareholders' equity, results of
operations or business of the Company and its subsidiaries,
taken as a whole, and where so qualified have all corporate
power and authority necessary to own, lease or operate their
respective prop-
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erties and to conduct the businesses in which they are engaged
as described in the Prospectus.
(f) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; and all of
the issued and outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized
and issued and are fully paid and non-assessable and (except
for directors' qualifying shares and as set forth in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(g) If the Offered Securities are Debt
Securities: The Debt Securities have been duly and validly
authorized by the Company and, when duly executed, issued and
delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the Indenture, against payment
therefor as provided in this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company
in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing;
and the Debt Securities, when issued and delivered, will
conform in all material respects to the description thereof
contained in the Prospectus.
(h) If the Offered Securities are Debt
Securities: The Indenture has been duly authorized by the
Company, and when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Trustee)
and de-
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livered by the Company will constitute a valid and legally
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing;
and the Indenture conforms in all material respects to the
description thereof contained in the Prospectus.
(i) If the Offered Securities are shares of
Preferred Stock: The shares of any Preferred Stock to be
issued and sold by the Company to the Underwriters have been
duly and validly authorized, and when issued and delivered
against payment therefor as provided in this Agreement, will
be duly and validly issued, fully paid and non-assessable;
and, when issued and delivered, such Preferred Stock will
conform in all material respects to the description thereof
contained in the Prospectus.
(j) If the Offered Securities are Depository
Shares: The deposit of any Underlying Preferred Shares by the
Company in accordance with the Deposit Agreement has been duly
authorized and, when Depositary Shares are issued and
delivered in accordance with the terms of this Agreement, the
Depositary Shares will be validly issued, fully paid and
non-assessable; and, when issued and delivered, such
Depositary Shares will conform in all material respects to the
description thereof contained in the Prospectus.
(k) If the Offered Securities are Depository
Shares: Assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share
will represent the interest described in the Prospectus in a
validly issued, outstanding, fully paid and non-assessable
Underlying Preferred Share; assuming due execution and
delivery of the
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Depositary Receipts by the Depositary pursuant to the Deposit
Agreement, the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement; and the Deposit Agreement conforms in all material
respects to the description thereof contained in the
Prospectus.
(l) If the Offered Securities are shares of
Common Stock: The unissued shares of Common Stock have been
duly and validly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, such
shares will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects to
the description thereof contained in the Prospectus.
(m) If the Offered Securities are convertible or
exchangeable into shares of Common Stock or Preferred Stock:
Such Stock of the Company reserved for issuance upon
conversion of or exchange for the Company's other securities
or exercise of the Company's Warrants have been validly
authorized and reserved for such purpose; and, if and when any
of the Company's other securities are converted into or
exchanged for shares of Stock of the Company in accordance
with the conversion or exchange rights so provided, or
purchased in accordance with the purchase rights so provided,
such shares of Stock will be validly issued, fully paid and
non-assessable and delivered in accordance with the terms of
the Company's Restated Certificate of Incorporation (the
"Certificate"); and when issued and delivered, such Stock will
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(n) If the Offered Securities are shares of
Stock: Except as described or incorporated by reference in
the Registration Statement or the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase,
nor any restrictions upon the voting or transfer of any shares
of the Stock, including any Stock issuable upon conversion or
exchange of any Offered
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Securities, in each case, pursuant to the Company's
Certificate or by-laws or any agreement or other instrument to
which the Company is a party.
(o) If the Offered Securities are Warrants: The
Warrants have been duly authorized and, upon payment therefor,
as provided in this Agreement, will be validly issued and
outstanding and will constitute legally binding obligations of
the Company, and upon exercise of the Warrants pursuant to the
related Warrant Agreement, if exercisable for Debt Securities,
will be entitled to the benefits of the Indenture; and when
issued and delivered, such Warrants will conform in all
material respects to the description thereof contained in the
Prospectus.
(p) This Agreement has been duly authorized,
executed and delivered by the Company.
(q) If the Offered Securities are Depository
Shares: The Deposit Agreement has been duly authorized by the
Company and when duly executed by the proper officers of the
Company (assuming due execution and delivery by the
Depositary)and delivered by the Company, will constitute a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing.
(r) If the Offered Securities are Warrants: The
Warrant Agreement has been duly authorized, executed and
delivered by the Company and (assuming due execution and
delivery by the Warrant Agent) will constitute a valid and
legally binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to the
effects of bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing; and the Warrant
Agreement conforms in all material respects to the description
thereof contained in the Prospectus.
(s) The execution, delivery and performance of
this Agreement, the Indenture (if the Offered Securi- ties are
Debt Securities), the Deposit Agreement (if the Offered
Securities are Depository Shares) and the Warrant Agreement
(if the Offered Securities are Warrants) by the Company, and
the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Offered
Securities will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under any indenture, lien, charge or encumbrance
upon any property or mortgage, deed of trust, loan agreement,
or other agreement or instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or
any of them is bound or to which any of the property or assets
of the Company or any of its Significant Subsidiaries is
subject except for such conflicts, breaches, violations or
defaults which would not have a material adverse effect on the
consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole, nor will such action result in
any violation of the provisions of the charter or by- laws of
the Company or any of its Significant Subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
material properties or assets; and except for the registration
of the Offered Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act,
and such consents, approvals, authorizations, regis-
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trations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Offered
Securities by the Underwriters, no consent, approval,
authorization or order of, or filing, registration or
qualification of or with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture (if the Offered
Securities are Debt Securities), the Deposit Agreement (if the
Offered Securities are Depositary Shares) or the Warrant
Agreement (if the Offered Securities are Warrants) by the
Company and the consummation by the Company of the
transactions contemplated hereby and thereby.
(t) Except as described or incorporated by
reference in the Registration Statement or the Prospectus,
there are no agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(u) If the Offered Securities are shares of
Common Stock, except as described in the Prospectus, the
Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of any
Prospectus relating to the offering of Common Stock, including
any sale pursuant to Rule 144A under, or Regulations D or S
of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding
options, rights, or warrants.
(v) Neither the Company nor any of its
subsidiaries has sustained, since the date of
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the latest financial statements included or incorporated by
reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any
change in the capital stock or long- term debt of the Company
or any of its subsidiaries or any material adverse change, or
any development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial condition, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus.
(w) Coopers & Lybrand L.L.P., who has certified
certain financial statements of the Company, Deloitte & Touche
LLP who has certified certain financial statements of
Pyro-Pacific Operating Company, and KPMG Wideri Oy Ab, who has
certified certain financial statements of the power generation
business of A. Ahlstrom Corporation ("Pyropower"),
respectively, whose reports appear in the Prospectus or are
incorporated by reference therein, and each of whom has
delivered the initial letters referred to in Section 7(h)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(x) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by
reference in the Prospectus present in all material respects
fairly the financial condition and results of operations of
the entities purported to be shown thereby at the dates and
for the periods indicated; and have been prepared in
conformity with United States generally accepted accounting
principles or International Accounting Standards, as the case
may be, applied on a consis-
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tent basis throughout the periods involved, except as
otherwise expressly set forth therein.
(y) Except as described in the Registration
Statement, Prospectus or in documents incorporated therein by
reference, there are no legal or governmental proceedings
pending to which the Company or any of its Significant
Subsidiaries is a party or of which any material property or
assets of the Company or any of its Significant Subsidiaries
is the subject which is required to be disclosed in the
Registration Statement, Prospectus or in documents
incorporated therein by reference or which would have a
material adverse effect on the consolidated financial
condition, shareholders' equity, results of operations or
business of the Company and its subsidiaries, taken as a
whole, or the transactions contemplated by this Agreement; and
to the Company's knowledge, no such proceedings are threatened
by governmental authorities or threatened by others.
(z) There are no contracts or other documents
which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference
under the Rules and Regulations.
(aa) Neither the Company nor any of its
Significant Subsidiaries is (i) in violation of its charter or
by-laws, or (ii) in default in any material respect, and no
event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan
agreement or other agreement to which the Company or any of
its Significant Subsidiaries is a party or by which it or any
of them is or may be bound or to which any of the properties
or assets of the Company or any of its subsidiaries is
subject,
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except for such default which would not have a material
adverse effect on the consolidated financial condition,
shareholders' equity, results of operations or business of the
Company and its subsidiaries taken as a whole or (iii) in
violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which the
Company or any of its subsidiaries or its or any of their
property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the
ownership of its or their property or to the conduct of its or
their business, except for such violation or failure which
would not have a material adverse effect on the condition
(financial or otherwise), shareholders' equity, results of
operations or business of the Company and its subsidiaries
taken as a whole.
(ab) Neither the Company nor, to the Company's
knowledge, any of its subsidiaries, any director, officer,
agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, except for such
violations which would not have a material adverse effect on
the consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole.
(ac) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "Investment Act") and the
rules and regulations of the Commission thereunder.
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(ad) Neither the BBB nor Baa2 senior debt rating
assigned to the Company in 1995 by Standard & Poor's
Corporation and by Moody's Investor Services, Inc.,
respectively, has been lowered or, to the Company's knowledge,
threatened to be lowered by either such rating agency nor, to
the Company's knowledge, has it been placed under surveillance
or review by either such rating agency.
(ae) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for
the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
2. Purchase of the Offered Securities by the Underwriters.
On the basis of the representations and warranties contained in, and subject to
the terms and conditions set forth herein, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price and/or principal amount, as the case
may be, set forth in the Terms Agreement attached hereto as Schedule I and in
the respective amounts and number of shares, as the case may be, of the
designated Offered Securities set forth opposite the name of each such
Underwriter in Exhibit A to such Terms Agreement.
In addition, the Company may specify in any Terms Agreement
relating to any offering of the designated Stock that the Company thereby
grants to the Underwriters an option to purchase up to the number of shares of
additional Stock (the "Option Stock") in the amount set forth in such Terms
Agreement. The option thereby granted is exercisable as provided in Section 4
hereof, shall expire at such time as is set forth in the applicable Terms
Agreement, and will be granted solely for the purpose of covering
over-allotments which may be made in connection with the offering and sale of
the Stock. Shares of the Option Stock shall be purchased severally for the
account of the Underwriters in proportion to the number of shares of Stock set
opposite the name of such Underwriters in Exhibit A of such Terms Agreement.
The respective purchase obligations of each Underwriter with respect to the
Option Stock shall be adjusted by the managing Underwriter so that no
Underwriter
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shall be obligated to purchase Option Stock other than in 100 share amounts.
3. Offering of the Offered Securities by the
Underwriters. The several Underwriters propose to offer the Offered Securities
for sale upon the terms and conditions set forth in the Prospectus and any
amendment or supplement thereto relating to the Offered Securities.
4. Delivery of and Payment for the Offered Securities.
Delivery of and payment for the Offered Securities shall be made at such
location as may be agreed upon by the Underwriters and the Company at
10:00 a.m. New York City time, on the third business day following the date of
this Agreement, or at such other time and date as shall be agreed upon (each
such date and time of payment and delivery being herein called the "Closing
Date") in the manner set forth in the applicable Terms Agreement. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Offered Securities shall be registered in such
names and in such denominations as the Underwriters shall request in writing
not less than two full business days prior to the Closing Date. For the
purpose of expediting the checking and packaging of the certificates for the
Stock, the Company shall make the certificates representing the Stock available
for inspection by the Underwriters in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities that will be deposited with,
or on behalf of, a Depositary, or its nominee, identified in the Prospectus
Supplement relating to such series. In such a case, the manner of delivery of
such global securities will be set forth in the applicable Terms Agreement.
At any time on or before the thirtieth day after the date of
any Terms Agreement relating to designated Stock and Option Stock, the option
granted in Section 2 may be exercised by written notice being given to the
Company by Lehman Brothers Inc., on behalf of the Underwriters. Such notice
shall set forth the aggregate number of shares of Option Stock as to which the
option is being exercised,
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<PAGE> 17
the names in which the shares of Option Stock are to be registered, the
denominations in which the shares of Option Stock are to be issued and the date
and time, as determined by the Underwriters, when the shares of Option Stock
are to be delivered; provided, however, that this date and time shall not be
earlier than the Closing Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the third
business day after the date on which the option shall have been exercised. The
date and time the shares of Option Stock are delivered are sometimes referred
to as the "Option Closing Date".
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement between
the Underwriters and the Company at 10:00 a.m., New York City time, on the
Option Closing Date.) On the Option Closing Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Company of the purchase price in the manner set forth in the
applicable Terms Agreement. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Option Stock
shall be registered in such names and in such denominations as the Underwriters
shall request in the aforesaid notice. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the Company
shall make the certificates representing the Option Stock available for
inspection by the Underwriters in New York, New York, not later than 2:00 p.m.,
New York City time, on the business day prior to the Option Closing Date.
5. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form
reasonably approved by the Underwriters and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the
second business day following the execution and delivery of
this Agreement or, if applicable, such
17
<PAGE> 18
earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to make no further amendment or supplement to
the Registration Statement or to the Prospectus prior to the
applicable Closing Date except as permitted herein; to advise
the Underwriters, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with
the offering or sale of the Offered Securities; to advise the
Underwriters, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly upon request by the
representatives named in any applicable Terms Agreement (the
"Representatives") of the Underwriters to the Underwriters and
to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the
18
<PAGE> 19
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Underwriters such
number of the following documents as the Representa- tives of
the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Indenture,
the Deposit Agreement, the Warrant Agreements and such other
exhibits as the Underwriters may reasonably request), (ii)
each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus and (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto); and,
if the delivery of a prospectus is required at any time after
the Effective Date in connection with the offering or sale of
the Offered Securities and if at such time any events shall
have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Prospectus (or
to file under the Exchange Act any document incorporated by
reference in the Prospectus) in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriters
and, upon the reasonable request of the Representatives of the
Underwriters, to file such document and to prepare and furnish
without charge to each Underwriter as many copies as the
Representatives of the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company
19
<PAGE> 20
and the Underwriters, be required by the Securities Act or
requested by the Commission;
(e) Prior to filing with the Commission any
amendment to the Registration Statement or supplement to the
Prospectus, and promptly after filing with the Commission any
document incorporated by reference in the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for
the Underwriters;
(f) As soon as practicable after the date of
this Agreement and every Terms Agreement relating to
designated Offered Securities, to make generally available to
its security holders an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
applicable Closing Date, to furnish to the Underwriters,
copies of all materials furnished by the Company to all of its
shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock and
any other Offered Securities may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rules or
regulations of the Commission thereunder;
(h) Promptly from time to time to take such
action as the Underwriters may reasonably request to qualify
the Offered Securities for offering and sale under the
securities laws of such jurisdictions as the Underwriters may
reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Offered Securities provided, however, that
in connection therewith the Compa-
20
<PAGE> 21
ny shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction where it is not so qualified;
(i) For a period of 90 days after the date of the
Prospectus relating to designated Stock, the Company will
not, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any
shares of Common Stock or any security convertible or
exchangeable for Common Stock (other than shares issuable
pursuant to employee benefit plans, qualified stock option
plans or other employee compensations plans then existing or
pursuant to then currently outstanding options, warrants or
rights), or sell or grant options, rights or warrants with
respect to any shares (other than the grant of options
pursuant to option plans existing on the date thereof) without
the prior written consent of the Underwriters or their
representative;
(j) In the event designated Offered Securities
are to be listed on a national securities exchange, to apply
for any listing of such designated Offered Securities on any
national securities exchange and to use its best efforts to
complete that listing, subject only to official notice of
issuance, prior to the relevant Closing Date; and
(k) To apply the net proceeds from the sale of the
Offered Securities being sold by the Company as set forth in
the Prospectus.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Offered
Securities and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
21
<PAGE> 22
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs, if any,
printing this Agreement and any other related documents in connection with the
offering, purchase, sale and delivery of the Offered Securities; (g) any
applicable listing or other fees; (h) the fees and expenses of qualifying the
Offered Securities under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses
of counsel to the Underwriters); provided that the expenses and fees in this
clause (h) shall not exceed $10,000 in the aggregate; (i) any fees charged by
securities rating services for rating any Offered Securities and (j) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that, except as provided in this Section
6 and in Section 11, the Underwriters shall pay the costs and expenses of their
counsel, any transfer taxes on the Offered Securities which they may sell, the
expenses of advertising any offering of the Offered Securities made by the
Underwriters and all other costs and expenses of the Underwriters and their
counsel not enumerated in this Section 6.
7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for any Offered Securities
are subject to the accuracy, when made, and on each Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and under any Terms
Agreement, and to each of the following additional terms and conditions:
(a) At the applicable Closing Date, the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to
22
<PAGE> 23
the Representatives of the Underwriter's reasonable
satisfaction.
(b) No Underwriter, shall have discovered and
disclosed to the Company on or prior to any Closing Date that
the Registration Statement or the Prospectus or any amendment
or supplement thereto contains an untrue statement of a fact
that, in the opinion of counsel for the Underwriters, is
material or omits to state a fact that, in the opinion of such
counsel, is material and is required to be stated therein or
is necessary to make the statements therein, (in the case of
the Prospectus, in light of the circumstances in which they
were made), not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form, validity and
enforceability of this Agreement, any Terms Agreement, the
Indenture, the Deposit Agreement, the Warrant Agreements, the
Offered Securities, the Registration Statement and the
Prospectus, and all other legal matters relating to this
Agreement and any Terms Agreement and the transactions
contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Thomas R. O'Brien, General Counsel to the
Company, shall have furnished to the Underwriters his opinion,
as general counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to counsel for the Underwriters to the
effect that:
(i) The Company's Significant
Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing
under the laws of their respective jurisdictions of
incorporation; and the Company is duly qualified to
do
23
<PAGE> 24
business and is in good standing as a foreign
corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its
respective business requires such qualification and
where the failure to be so qualified and in good
standing would have a material and adverse effect on
the consolidated financial condition, shareholders'
equity, results of operations or business of the
Company and its subsidiaries, taken as a whole, and
where so qualified have all corporate power and
authority necessary to own, lease or operate their
respective properties and to conduct the businesses
in which they are engaged as described or
incorporated by reference in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued and outstanding shares of capital
stock of the Company have been duly and validly
authorized and issued, are fully paid and
non-assessable and conform in all material respects
to the description thereof contained in the
Prospectus; and all of the issued and outstanding
shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying
shares) and, as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or
claims;
(iii) To such counsel's knowledge, there are
no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to
the Registration Statement or incorporated therein by
reference under the Rules and Regulations;
24
<PAGE> 25
(iv) The documents incorporated by
reference in the Prospectus (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion), when
they were filed with the Commission complied as to
form in all material respects with the requirements
of the Exchange Act and the rules and regulations of
the Commission thereunder; and
(v) To such counsel's knowledge and
except as described or incorporated by reference in
the Registration Statement or the Prospectus, there
are no agreements or understandings between the
Company and any person granting such person the right
to require the Company to file a registration
statement under the Securities Act with respect to
any securities of the Company owned or to be owned by
such person or to require the Company to include such
securities in the securities registered pursuant to
the Registration Statement or in any securities being
registered pursuant to any other registration
statement filed by the Company under the Securities
Act.
(vi) To such counsel's knowledge, and
other than as set forth in the Registration
Statement, the Prospectus, or any documents
incorporated by reference, there are no legal or
governmental proceedings pending to which the Company
or any of its Significant Subsidiaries is a party or
of which any material property or assets of the
Company or any of its Significant Subsidiaries is the
subject which, if determined adversely to the Company
or any of its Significant Subsidiaries, would have a
material adverse effect on the consolidated financial
condition, shareholders' equity, results of
operations, business or prospects of the Company and
its subsidiaries taken as a whole; and to such
counsel's knowledge, no such proceedings are threat-
25
<PAGE> 26
ened by governmental authorities or threatened by
others;
(vii) The issue and sale of the Offered
Securities being delivered on the Closing Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement, the Indenture, the
Deposit Agreement and the Warrant Agreement and the
consummation of the transactions contemplated hereby
and thereby, will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or
other agreement known to such counsel to which the
Company or any of the Significant Subsidiaries is a
party or by which the Company or any of such
Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its
Significant Subsidiaries is subject except for such
conflicts, breaches, violations or defaults which
would not have a material adverse effect on the
consolidated financial condition, shareholders'
equity, results of operations or business of the
Company and its subsidiaries taken as a whole nor
will such actions result in any violation of the
provisions of any State or Federal statute or any
order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of its
Significant Subsidiaries or any of their material
properties or assets.
(e) White & Case, counsel to the Company, shall
have furnished to the Underwriters their opinion, as counsel
to the Company, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
26
<PAGE> 27
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of New York;
(ii) There are no preemptive or other
rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of any
shares of the Stock, including any Stock issuable
upon conversion or exchange of any Offered
Securities, in each case pursuant to the Company's
Certificate or by-laws or any agreement or other
instrument to which the Company is a party known to
such counsel;
(iii) If the Offered Securities are Debt
Securities: The Offered Debt Securities have been
duly and validly authorized by the Company and, when
duly executed, issued and delivered by the Company,
and authenticated by the Trustee pursuant to the
provisions of the Indenture, against payment therefor
as provided in this Agreement, will constitute valid
and legally binding obligations of the Company
entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of
creditors' rights generally and by general equitable
principles (regardless of whether the issue of
enforceability is considered in a proceeding in
equity or at law) and the Debt Securities, when
issued and delivered, will conform in all material
respects to the description thereof contained in the
Prospectus;
(iv) If the Offered Securities are Debt
Securities: The Indenture has been duly authorized
by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the
27
<PAGE> 28
Company will constitute a valid and legally binding
obligation of the Company enforceable against the
Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
whether the issue of enforceability is considered in
a proceeding in equity or at law) and the Indenture
conforms in all material respects to the description
thereof contained in the Prospectus;
(v) If the Offered Securities are
Preferred Stock: The shares of Offered Preferred
Stock to be issued and sold by the Company to the
Underwriters have been duly and validly authorized,
and when issued and delivered against payment
therefor as provided in this Agreement, will be duly
and validly issued, fully paid and non-assessable;
and, when issued and delivered, the Preferred Stock
will conform in all material respects to the
description thereof contained in the Prospectus;
(vi) If the Offered Securities are
Depository Shares: The deposit of any Underlying
Preferred Shares by the Company in accordance with
any Deposit Agreement has been duly authorized and,
when the Depositary Shares are issued and delivered
in accordance with the terms of this Agreement, the
Depositary Shares will be validly issued, fully paid
and non-assessable; and when issued and delivered,
the Depositary Shares will conform in all material
respects to the description thereof contained in the
Prospectus;
(vii) If the Offered Securities are
Depository Shares: Assuming due authorization,
execution and delivery of the Deposit Agreement by
the Depositary, each Depositary Share will represent
the interest
28
<PAGE> 29
described in the Prospectus in a validly issued,
outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery
of the Depositary Receipts by the Depositary pursuant
to the Deposit Agreement, the Depositary Receipts
will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement; and
the Deposit Agreement conforms in all material
respects to the description thereof contained in the
Prospectus;
(viii) If the Offered Securities are shares
of Common Stock: The unissued shares of the Common
Stock have been duly and validly authorized and, when
issued and delivered against payment therefor as
provided in this Agreement, such shares will be duly
and validly issued, fully paid and non-assessable;
and the Common Stock will conform in all material
respects to the description thereof contained in the
Prospectus;
(ix) If the Offered Securities are
convertible or exchangeable into shares of Common
Stock or Preferred Stock: The shares of Stock of the
Company reserved for issuance upon conversion of or
exchange for the Company's other securities or
exercise of the Company's Warrants have been validly
authorized and reserved for such purpose; and, if and
when any of the Company's other securities are
converted or exchanged into shares of Stock of the
Company in accordance with the conversion or exchange
rights so provided, or purchased in accordance with
the purchase rights so provided, such Stock will be
validly issued, fully paid and non-assessable and
delivered in accordance with the terms of the
Company's Certificate; and when issued and delivered,
such Stock will conform in all material respects
to the descriptions thereof contained in the
Prospectus;
29
<PAGE> 30
(x) If the Offered Securities are
Warrants: The Warrants have been duly authorized and,
upon payment therefor, will be validly issued and
outstanding and will constitute legally binding
obligations of the Company and, upon exercise of the
Warrants pursuant to the related Warrant Agreement, if
exercisable for Debt Securities, will be entitled to
the benefits of the Indenture; and when issued and
delivered, such Warrants will conform in all material
respects to the description thereof contained in the
Prospectus;
(xi) This Agreement has been duly
authorized, executed and delivered by the Company;
(xii) If the Offered Securities are
Depository Shares: The Deposit Agreement has been
duly authorized, executed and delivered by the
Company and (assuming due execution and delivery by
the Depositary) constitutes a valid and legally
binding obligation of the Company enforceable in
accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
whether the issue of enforceability is considered in
a proceeding in equity or at law);
(xiii) If the Offered Securities are
Warrants: The Warrant Agreements have been duly
authorized, executed and delivered by the Company and
(assuming due execution and delivery by the Warrant
Agent) constitute a valid and legally binding
obligations of the Company enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
30
<PAGE> 31
whether the issue of enforceability is considered in
a proceeding in equity or at law); and the Warrant
Agreements conform in all material respects as to
legal matters to the description thereof contained in
the Prospectus;
(xiv) The Company is not an "investment
company" within the meaning of such term under the
Investment Act and the rules and regulations of the
Commission thereunder;
(xv) The Registration Statement was
declared effective under the Securities Act and the
Inden- ture was qualified under the Trust Indenture
Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission
pursuant to subparagraph of Rule 424 specified in
such opinion on the date specified therein and no
stop order suspending the effectiveness of the
Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(xvi) The statements contained in the
Prospectus under the captions relating to the Offered
Securities insofar as they describe federal
statutes, rules and regulations, or portions thereof,
constitute accurate descriptions thereof in all
material respects;
(xvii) The Registration Statement, as of
the Effective Date, and the Prospectus, as of the
date it was filed with the Commission, and any
further amendments or supplements thereto made by the
Company prior to the applicable Closing Date (other
than the financial statements and related schedules
therein and all other financial and statistical data
included or incorporated by reference therein or
omitted therefrom and other than the T-1, as to which
such counsel need express no opinion)
31
<PAGE> 32
appears on its face to comply as to form in all
material respects with the requirements of the
Securities Act and the Rules and Regulations; and the
Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder; and
(xviii) The issue and sale of the Offered
Securities being delivered on the Closing Date by
the Company and the compliance by the Company with
all of the provisions of this Agreement, the
Indenture, the Deposit Agreement and the Warrant
Agreement and the consummation of the transactions
contemplated hereby and thereby, will not result in
any violation of the provisions of the charter or
by-laws of the Company or any New York State or U.S.
Federal statute or any order, rule or regulations
known to such counsel of any New York State or U.S.
Federal court or governmental agency or body having
jurisdiction over the Company; and, except for the
registration of the Offered Securities under the
Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act, the Trust
Indenture Act and applicable state securities laws in
connection with the purchase and distribution of the
Offered Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or
registration with, any such court or governmental
agency or body is required for the execution delivery
and performance of this Agreement, the Indenture, the
Deposit Agreement and the Warrant Agreements by the
Company and the consummation by the Company of the
transactions contemplated hereby and thereby.
In rendering the opinions required by subsections (d) and (e)
of this section, Thomas R. O'Brien and White & Case, respectively, may
(i) state that their opinion is limited to matters governed by the
federal laws of the United States of America and the laws of
32
<PAGE> 33
the State of New York and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion), as to matters involving the
application of laws covered by supporting opinion upon the opinion of
other counsel of good standing, provided that such other counsel is
reasonably satisfactory to counsel for the Underwriters and furnishes
a copy of its opinion to the Underwriters. In addition, Thomas R.
O'Brien, in rendering the opinions required by clauses (i) and (ii) of
Subsection (d) with respect to Significant Subsidiaries, may rely on
opinions rendered by counsel employed by such Significant
Subsidiaries.
Thomas R. O'Brien shall have furnished to the Underwriters a
written statement addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that he has acted as counsel to the Company on a regular basis
and in connection with previous financing transactions. In addition,
each of Thomas R. O'Brien and White & Case shall also have furnished
to the Underwriters written statements, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that such counsel has acted as counsel to
the Company in connection with the preparation of the Registration
Statement, and based on the foregoing, such counsel does not believe
that (I) the Registration Statement (other than the financial
statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such
counsel shall express no opinion or belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus
(other than the financial statements and related schedules and all
other financial and statistical data included or incorporated by
reference therein or omitted therefrom, and other than the Form T-1,
as to which such counsel shall express no opinion or belief), as of
its date and the applicable Closing Date, contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or
33
<PAGE> 34
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (II) any
document incorporated by reference in the Prospectus (other than the
financial statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such
counsel shall express no opinion or belief) contained an untrue
statement of a material fact or omitted 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. The
foregoing opinion and statement may be qualified by statements to the
effect that (i) such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus except for the statements
made in the Prospectus under the captions relating to the designated
Offered Securities and, if applicable, "Federal Income Tax
Consequences", insofar as such statements relate to the Offered
Securities and concern legal matters and (ii) as to facts necessary to
the determination of materiality, such counsel is relying upon the
opinions of officers and other representatives of the Company.
(f) The Underwriters shall have received from
counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Offered Securities, the Registration Statement, the Prospectus
and other related matters as the Underwriters may reasonably
require.
(g) At the Closing Date, counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the
Offered Securities as contemplated herein and in each Terms
Agreement and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein and therein
contained.
34
<PAGE> 35
(h) At the time of execution of this Agreement
and each Terms Agreement, the Underwriters shall have received
from each of Coopers & Lybrand L.L.P., with respect to the
Company, and KPMG, with respect to Pyropower, letters, in
form and substance satisfactory to the Underwriters, addressed
to the Underwriters and dated the date hereof and thereof (i)
confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of the Securities Act, (ii) stating, as of the date hereof and
thereof, (or with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date
not more than five days prior to the date hereof or thereof),
the conclusions and findings of such firm with respect to the
financial information and other matters as provided in SAS No.
72.
(i) With respect to the letters of Coopers &
Lybrand L.L.P. and KPMG referred to in the preceding paragraph
and delivered to the Underwriters concurrently with the
execution of this Agreement (the "initial letter") and each
Terms Agreement, the Company shall have furnished to the
Underwriters letters (the "bring-down letters") of such
accountants, addressed to the Underwriters and dated the
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as
of a date not more than five business days prior to the date
of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in
all material respects the
35
<PAGE> 36
conclusions and findings set forth in the initial letter.
(j) At each Closing Date, there shall not have
been, since the date hereof or since the respective dates as
of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the
consolidated financial condition, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Company shall have
furnished to the Underwriters a certificate, dated the Closing
Date of its Chairman of the Board, its President or a Vice
President of the Company, on the one hand, and its chief
financial officer or its Treasurer, on the other hand, stating
that:
(i) The representations and warranties of
the Company in Section 1 are true and correct as of
such Closing Date; the Company has complied with all
its agreements contained in this Agreement and the
conditions set forth in Section 7(a) and 7(k) have
been fulfilled in each case, in all material
respects;
(ii) They have carefully examined the
Registration Statement and the Prospectus and in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
(in the case of the Prospectus, in light of the
circumstances in which they were made) not
misleading, and (B) since the Effective Date no event
has occurred which should have been set forth or
incorporated by reference in a supplement or
amendment to the Registration Statement or the
Prospectus which has not been so set forth; and
36
<PAGE> 37
(iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the knowledge of the Company, no
proceedings for that purpose have been initiated or
threatened by the Commission.
(k) (i) Neither the Company nor any of its
Significant Subsidiaries shall have sustained since the
respective dates as of which information is given in the
Registration Statement or the Prospectus or in any document
incorporated by reference therein any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth, contemplated or
incorporated by reference in the Prospectus or in any of the
documents incorporated by reference therein, or (ii) since
such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its
Significant Subsidiaries except as set forth in the letters
described in paragraphs (i) or (j) of this Section 7, or any
material change in the financial condition, shareholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated or incorporated by reference in the Prospectus or
in any of the documents incorporated by reference therein, the
effect of which, in any such case described in clause (i) or
(ii), is, in the reasonable judgment of the majority in
interest of the Underwriters, so material and adverse as to
make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Securities
being delivered on such Closing Date on the terms and in the
manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, (i) no
downgrading shall have occurred in the rating accorded the
Company's securities by any "nationally recognized statistical
rating
37
<PAGE> 38
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
(m) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange, the NASDAQ
National Market or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having
jurisdiction, (ii) a general banking moratorium shall have
been declared by federal or New York state authorities (iii)
the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general
economic or financial conditions (or such a material adverse
change in international conditions the effect of which on the
financial markets in the United States shall be such) as to
make it, in the reasonable judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Offered
Securities being delivered on such Closing Date on the terms
and in the manner con- templated in the Prospectus.
(n) The Underwriters shall have received from
each of the Company's directors and executive officers an
executed letter to the effect that for a period of 90 days
after the date of the Prospectus relating to designated Stock,
he or she will not, directly or indirectly, offer
38
<PAGE> 39
for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or any
security convertible or exchangeable for Common Stock, or sell
or grant options, rights or warrants with respect to any
shares without the prior written consent of the Underwriters
or their representative.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each such person, if any, who
controls any Underwriter, within the meaning of the Securities Act, from and
against any and all loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to any losses, claims,
damages, liabilities or actions relating to purchases and sales of the Offered
Securities), to which that Underwriter, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arise out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances in which they were
made) not misleading and shall reimburse each Underwriter and each such
officer, employee or con-
39
<PAGE> 40
trolling person within 30 days after receiving written demand therefor for any
legal or other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arise out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through any
Underwriter by or on behalf of any Underwriter specifically for inclusion
therein; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any Preliminary Prospectus to the extent that any such loss, claim, damage,
liability or any action in respect thereof of such Underwriter results from the
fact that such Underwriter sold Offered Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was (i) identified
to such Underwriter at or prior to the earlier of the filing with the
Commission or the furnishing to such Underwriter of the Prospectus and (ii)
corrected in the Prospectus or in the Prospectus as then amended or
supplemented. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any lawsuits, claims, damages, liabilities or actions relating
to the purchases and sales of Offered Securities), to which the
40
<PAGE> 41
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Underwriters by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified
41
<PAGE> 42
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof;
provided, however, if the defendants in any such action include both and the
indemnified party or parties and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel by both the
indemnifying party and the indemnified party or parties or different defenses
available to the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel, reasonably
satisfactory to the indemnifying party, at the indemnifying party's expense,
and to participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one special counsel
representing the indemnified party or parties who are parties to such action).
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under
42
<PAGE> 43
Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the fault of the Company on the one hand and the Underwriters on the other
with respect to the statements or omissions which in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Offering Securities purchased under this Agreement and any
applicable Terms Agreement (before deducting expenses) received by the Company
on the one hand, and the total underwriting discounts and commissions received
by the Underwriters with respect to the Offered Securities purchased under this
Agreement and any applicable Terms Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Offered Securities under this
Agreement and any applicable Terms Agreement in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect
43
<PAGE> 44
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), 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 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the following
statements are correct and constitute information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus:
(i) the statements in the paragraph identified in Exhibit A attached to the
applicable Terms Agreement for the sale of designated Offered Securities
concerning stabilization and over-allotment by the Underwriters, (ii) the
statements with respect to the public offering of the Offered Securities by the
Underwriters set forth on the cover page of the Prospectus and (iii) the
statements in the paragraphs regarding the public offering of the Offered
Securities by the Underwriters and the statements made concerning concession,
allowance and reallowance, in each case set forth under the caption
"Underwriting" and as identified in Exhibit A attached to the applicable Terms
Agreement for the sale of designated Offered Securities.
9. Defaulting Underwriters. If on the applicable Closing
Date, any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase (in addition to the amount of Offered Securities which such
Underwriters are obligated to purchase pursuant to Section 2) the Offered
Securities which the defaulting Underwriter agreed but failed to purchase on
such Closing
44
<PAGE> 45
Date in the respective proportions to the amount of Offered Securities set
opposite the names of each remaining non-defaulting Underwriter in Exhibit A to
the applicable Terms Agreement bears to the amount of the Offered Securities
set opposite the names of all the remaining non-defaulting Underwriters in
Exhibit A to the applicable Terms Agreement; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Offered Securities on such Closing Date if the total number of Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on such date exceeds 10% of the total amount of the Offered
Securities to be purchased on such Closing Date. If the foregoing maximum
percentage is exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Underwriters who so agree, shall have
the right, but shall not be obligated, to purchase, in such proportion as may
be agreed upon among them, all the Offered Securities to be purchased on such
Closing Date. If the foregoing maximum percentage is exceeded, the remaining
non-defaulting Underwriters which have agreed to purchase in the aggregate 50%
or more of the aggregate amount of Offered Securities (other than the Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Closing Date) may, at any time after 72 hours immediately
following the failure of the defaulting Underwriter or Underwriters to purchase
the Offered Securities set forth opposite the name of such Underwriter or
Underwriters, terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 6 and 11. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Exhibit A to any applicable Terms Agreement who, pursuant to this Section 9,
purchases Offered Securities which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Offered Securities of a defaulting or withdrawing Underwriter, either the
Underwriters or the Company may postpone the applicable Closing Date for up to
seven full business days in order to effect any changes that in reasonable the
45
<PAGE> 46
opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other
document or arrangement necessary to consummate the transactions described
herein.
10. Termination. Except as provided in the applicable
Prospectus Supplement, the obligations of the Underwriters hereunder may be
terminated by the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate amount of Offered Securities by notice given to
and received by the Company prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections
7(k), (l) and (m) shall have occurred or if the Underwriters shall decline to
purchase the Offered Securities as permitted by Section 9.
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Offered Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled (other than Section 7(m)), the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Offered
Securities, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter for any of its expenses incurred in
connection with this Agreement.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission c/o Lehman
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director
46
<PAGE> 47
of Litigation, Office of the General Counsel, Lehman Brothers
Inc., World Financial Center, 10th Floor, New York, NY 10285;
and
(b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the ad- dress of
the Company set forth in the Registration Statement,
Attention: General Counsel; (Fax: (908) 730-4020).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by Lehman Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, and their respective successors. This Agreement and the terms
and provisions hereof are for the sole benefit of only those persons, except
that (A) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the benefit
of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of
the Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of the directors of the Company, officers of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for any
Offered Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
47
<PAGE> 48
15. Definition of the Term "Business Day". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
48
<PAGE> 49
If the foregoing correctly sets forth the agreement between
the Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
FOSTER WHEELER CORPORATION
By
---------------------------------
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
By
-------------------------------------
LEHMAN BROTHERS
49
<PAGE> 50
SCHEDULE I
TERMS AGREEMENT
<PAGE> 51
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
I. U.S. Domiciled Significant Subsidiaries
Foster Wheeler Energy Corporation
Foster Wheeler Energy International, Inc.
Foster Wheeler Environmental Corporation
Foster Wheeler International Corporation
Foster Wheeler Power Systems, Inc.
Foster Wheeler USA Corporation
Glitsch International, Inc.
Ahlstrom Pyropower Inc.
II. Foreign Significant Subsidiaries
Foster Wheeler Limited
Foster Wheeler Energy Ltd.
Foster Wheeler Italiana, S.p.A.
Foster Wheeler Iberia S.A.
Foster Wheeler Energia, S.A.
Foster Wheeler Energia OY
<PAGE> 1
Exhibit 4
==============================================
FOSTER WHEELER CORPORATION
TO
HARRIS TRUST AND SAVINGS BANK,
Trustee
-------------
INDENTURE
Dated as of , 1995
--------- --
==============================================
<PAGE> 2
Reconciliation and tie between Indenture, dated as of ________ __, 1995, and
the Trust Indenture Act of 1939, as amended ("TIA").
<TABLE>
<CAPTION>
Indenture
TIA Section Section
- ----------- ---------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . TIA
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 610; TIA
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702(c); TIA
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 704; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(f) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 601; 603; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 602; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
</TABLE>
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<TABLE>
<S> <C>
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . TIA
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA
(e) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 502; 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 507; 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b) . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 108; TIA
</TABLE>
_____________
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application . . . . . . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Price Per Share . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . 4
Converting Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(i)
<PAGE> 5
<TABLE>
<CAPTION>
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<S> <C>
Defeasance and covenant defeasance . . . . . . . . . . . . . . . . . . 5
Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 6
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
NASDAQ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Overdue Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Rescission Event . . . . . . . . . . . . . . . . . . . . . . 9
Registered Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rescission Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(ii)
<PAGE> 6
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Specified Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trading Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Working Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . 11
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . 12
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . 13
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . 14
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . 15
Section 107. Shareholders, Officers and Directors of Company
Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . 16
Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 16
Section 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . 16
Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 115. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
Security Forms . . . . . . . . . . . . . . . . . . . . . . . 17
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 202. Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 203. Additional Provisions Required in Global
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<PAGE> 7
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The Securities . . . . . . . . . . . . . . . . . . . . . . . 19
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . 19
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 303. Execution, Authentication, Delivery
and Dating of Securities . . . . . . . . . . . . . . . . . . . . . . . 23
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . 26
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . 29
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 311. Securities Denominated in Foreign Currencies . . . . . . . . . . . . . . 33
Section 312. Compliance with Certain Laws and Regulations . . . . . . . . . . . . . . 33
ARTICLE FOUR
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . 34
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . 34
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE FIVE
Remedies . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . 39
Section 505. Trustee May Enforce Claims Without Possession
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 506. Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . 41
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . 43
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . 43
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 43
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . 43
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . 45
ARTICLE SIX
The Trustee . . . . . . . . . . . . . . . . . . . . . . 45
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . 45
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 603. Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . 47
Section 604. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . 48
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . 49
Section 608. Right to Rely on Officers' Certificate . . . . . . . . . . . . . . . . . 50
Section 609. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . 50
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . 52
Section 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . 53
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . 54
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company . . . . . . . . . . . . 56
Section 701. Company to Furnish Trustee
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . 56
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . . 56
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease . . . . . . . . . . 57
Section 801. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE NINE
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 58
Section 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . 61
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . 61
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . 62
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
Covenants . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . 62
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . 62
Section 1003. Money for Securities Payments to
Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1004. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1005. Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . 66
Section 1006. Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(vi)
<PAGE> 10
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Section 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . 67
Section 1008. Limitation on Debt Incurred by Restricted Subsidiaries . . . . . . . . 68
ARTICLE ELEVEN
Redemption of Securities . . . . . . . . . . . . . . . . . . . . 68
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . 68
Section 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . 70
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . 70
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . 71
Section 1108. Rescission of Redemption . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE TWELVE
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . 72
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1202. Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . . . . . . 73
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
Defeasance . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . 74
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1305. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . 77
</TABLE>
____________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(vii)
<PAGE> 11
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE FOURTEEN
Convertible Securities . . . . . . . . . . . . . . . . . . . . 78
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1402. Right of Holders to Convert Securities . . . . . . . . . . . . . . . . 78
Section 1403. Issuance of Shares of Capital
Stock on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1404. No Payment or Adjustment for
Interest or Dividends . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1405. Adjustment of Conversion Rate . . . . . . . . . . . . . . . . . . . . . 82
Section 1406. No Fractional Shares to be Issued . . . . . . . . . . . . . . . . . . . 86
Section 1407. Preservation of Conversion Rights Upon
Consolidation, Merger, Sale or Conveyance . . . . . . . . . . . . . . 86
Section 1408. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action . . . . . . . . . . . . . . . 87
Section 1409. Covenant to Reserve Shares for Issuance
on Conversion of Securities . . . . . . . . . . . . . . . . . . . . . 88
Section 1410. Compliance with Governmental Requirements . . . . . . . . . . . . . . . 88
Section 1411. Payment of Taxes Upon Certificates for
Shares Issued Upon Conversion of Securities . . . . . . . . . . . . . 89
Section 1412. Trustee's Duties with Respect
to Conversion Provisions . . . . . . . . . . . . . . . . . . . . . . 89
Section 1413. Corporate Action Regarding
Par Value of Capital Stock . . . . . . . . . . . . . . . . . . . . . 89
Section 1414. Company Determination Final . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE FIFTEEN
Subordination . . . . . . . . . . . . . . . . . . . . . . 90
Section 1501. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1502. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1503. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1504. Authorization by Holders of Subordinated
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
</TABLE>
____________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(viii)
<PAGE> 12
<TABLE>
<CAPTION>
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<S> <C> <C>
Section 1505. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 1506. Trustee's Relation to Senior Debt . . . . . . . . . . . . . . . . . . 95
Section 1507. No Impairment of Subordination . . . . . . . . . . . . . . . . . . . . 95
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Acknowledgments
</TABLE>
____________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(ix)
<PAGE> 13
THIS INDENTURE, dated as of _______, 1995 between FOSTER
WHEELER CORPORATION, a corporation duly organized and existing under the laws
of the State of New York (herein called the "Company"), having its principal
office at Perryville Corporate Park, Clinton, New Jersey 08809, and HARRIS
TRUST AND SAVINGS BANK, an Illinois banking corporation, as Trustee (herein
called the "Trustee") having its corporate trust office at 311 West Monroe
Street, Chicago, Illinois 60606.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness, which may be convertible
into shares of Capital Stock (as such term is hereinafter defined) of the
Company (such debentures, notes or other evidences of indebtedness herein
called the "Securities") to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is agreed for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. DEFINITIONS.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
<PAGE> 14
(2) all other terms used herein which are defined in, or by
Commission rule under, the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with United States
generally accepted accounting principles as in effect on the date
hereof; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that article.
The following terms shall have the following respective
meanings:
"Actual knowledge" has a meaning specified in Section 603.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid
by such Person under such lease during the remaining primary term thereof,
discounted from, the respective due dates thereof to such date at the rate of
interest per annum, compounded semi-annually, implicit in the terms of such
lease, as determined in good faith by the Company. The net amount of rent
required to be paid under any such lease for any such period shall be the
amount of the rent payable by the lessee with respect to such period, after
excluding amounts required to be paid on account of maintenance, repairs,
insurance, taxes, assessments, water rates and similar charges and contingent
rents such as those based on sales. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but shall not include any rent
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
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<PAGE> 15
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications
in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued under this
Indenture which is payable to bearer.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board or any directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, except as may otherwise be provided
herein or in any Security, when used with respect a location, any day which is
not a day on which banking institutions in that location are authorized or
obligated by law or executive order to close.
"Capital Stock" means any stock of any class of the Company.
"Closing Price Per Share" means, with respect to the Capital
Stock of the Company, for any day the last reported sales price per share (i)
on the NYSE as reported in the Wall Street Journal (or other similar newspaper)
for New York Stock Exchange Composite Transactions (or, if no such sale is so
reported on such day, the average of such reported closing bid and asked prices
regular way) or, if the Capital Stock is not listed or admitted to trading on
such the NYSE, on the principal (as determined by the Company's Board of
Directors) national securities exchange on which the Capital Stock is listed or
admitted to trading or, (ii) if not listed or admitted to trading on any
national securities exchange, on The NASDAQ National Market, or if the Capital
Stock is not listed or admitted to trading on any national securities exchange
or quoted on such National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that
purpose.
"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 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 at such time.
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<PAGE> 16
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by both (i) its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or a Vice President, and (ii) its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets after deducting (i) all current liabilities and (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth on the most recently prepared balance
sheet of the Company and its consolidated Subsidiaries and computed in
accordance with United States generally accepted accounting principles.
"Converting Holder" has the meaning specified in Section 1403.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 311
West Monroe Street, 12th Floor, Chicago, Illinois 60606, Attention: Indenture
Trust Division.
"Corporation" includes corporations, partnerships,
associations, companies, joint-stock companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt", with respect to any Person, means
(i) any debt (a) for money borrowed, or (b) evidenced by a
bond, note, debenture, or similar instrument (including purchase money
obligations) given in connection with the acquisition of any business,
property or assets, whether by purchase, merger, consolidation or
otherwise, but shall not include any account payable or other
obligation created or assumed by a Person in the ordinary course of
business in connection with the obtaining of materials or services, or
(c) which is a direct or indirect obligation which arises as a result
of banker's acceptances;
(ii) any debt of others described in the preceding clause (i)
which such Person has guaranteed or for which it is otherwise directly
liable;
-4-
<PAGE> 17
(iii) the obligation of such Person as lessee under any lease
of property which is reflected on such Person's balance sheet as a
capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement
or refunding of any liability of the kind described in any of the
preceding clauses (i), (ii) and (iii);
provided, however, that, in computing the Debt of any Person, there shall be
excluded any particular Debt if, upon or prior to the maturity thereof, there
shall have been deposited with a depositary in trust money (or evidence of Debt
if permitted by the instrument creating such Debt) in the necessary amount to
pay, redeem or satisfy such Debt as it becomes due, and the amount so deposited
shall not be included in any computation of the assets of such Person.
"Default" has the meaning specified in Section 602.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"defeasance" and "covenant defeasance" have the respective
meanings specified in Sections 1302 and 1303.
"Determination Date" has the meaning specified in Section
1405.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Existing Debt" means all Debt outstanding on the date of
issuance of a particular series of Securities.
"Global Security" means a Security bearing the legend
prescribed in Section 203 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee.
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<PAGE> 18
"Government Obligations" has the meaning specified in Section
1304.
"Holder" means, with respect to a Registered Security, a
Person in whose name a Security is registered in the Security Register and,
with respect to a Bearer Security, a bearer thereof or of a Coupon appertaining
thereto.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the mandatory provisions of the Trust Indenture Act that are deemed
to be a part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 301.
"Interest" means, when used with respect to a non-interest
bearing Security, interest payable after the principal thereof has become due
and payable whether at Maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise, and, when used with
respect to an Original Issue Discount Security which by its terms bears
interest only after Maturity, interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" has the meaning specified in Section 1004.
"Mandatory sinking fund payment" has the meaning specified in
Section 1201.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, pursuant to a
sinking fund or otherwise.
"NASDAQ" means National Association of Securities Dealers
Automated Quotations National Market System.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by both (a)
the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the President or a Vice President and (b) the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
-6-
<PAGE> 19
Each such Officers' Certificate shall include the statements required by
Section 102 hereunder.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company.
"Optional sinking fund payment" has the meaning specified in
Section 1201.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to Securities, means,
except as otherwise required by the Trust Indenture Act as of the date of
determination, all Securities theretofore 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 whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities and of any Coupons; provided, however, that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(d) Securities which have been converted into Capital Stock
in accordance with Article Fourteen hereof, if the terms of such
Securities provide for convertibility pursuant to Section 301.
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<PAGE> 20
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have taken any
action (including the making of any request, demand, authorization or
direction), the giving of any notice, consent or waiver (or the taking of any
other action) hereunder and in determining voting rights of any Holder of a
Security hereunder (i) the principal amount of Original Issue Discount
Securities that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 and (ii) the principal amount of any Security,
the principal amount of which is denominated in a Specified Currency, shall be
deemed to be that amount as determined in accordance with Section 311 (or, in
the case of any Original Issue Discount Security, the amount determined in
accordance with clause (i) above as well as Section 311), and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or any such other obligor. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice.
"Overdue Rate" means, unless otherwise specified in the
Securities of any series, the same rate as the rate of interest specified in
the Securities of such series or, in the case of a series of Original Issue
Discount Securities, the Yield to Maturity of such series of Securities.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Permitted Secured Debt" means all Debt (i) permitted under
Section 1004 and (ii) to which Section 1004 is expressly inapplicable.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a
-8-
<PAGE> 21
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any facility owned by the Company
or any subsidiary, in each case, the gross book value of which on the date of
determination exceeds 1% of Consolidated Net Tangible Assets.
"Project Debt" means Debt incurred to finance cogeneration,
waste-to-energy or other operating or construction projects, but only to the
extent that the Debt associated with any such transaction is limited in
recourse to the assets, contractual rights and revenues of the particular
project being financed.
"Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified as such in the
terms of the Securities of such series, or, if no such date is so specified, if
such Interest Payment Date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such Interest Payment Date is
the fifteenth day of a calendar month, the last day of the preceding calendar
month, whether or not such Record Date is a Business Day.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Redemption Rescission Event" means the occurrence of (a) any
general suspension of trading in, or limitation on prices for, securities on
the principal national securities exchange on which shares of Capital Stock are
registered and listed for trading (or, if shares of Capital Stock are not
registered and listed for trading on any such exchange, in the over-the-counter
market) for more than six-and-one-half (6-1/2) consecutive trading hours, (b)
any decline in either the Dow Jones Industrial Average or the Standard & Poor's
Index of 400 Industrial Companies (or any successor index published by Dow
Jones & Company, Inc. or Standard & Poor's Corporation) by either (i) an amount
in excess of 10%, measured from the close of business on any Trading Day to the
close of business on the next succeeding Trading Day during the period
commencing on the Trading Day preceding the day notice of any redemption of
Securities is given (or, if such notice is given after the close of business on
a Trading Day, commencing on the Trading Day) and ending at the time and date
fixed for redemption in such notice or (ii) an amount in excess of 15% (or if
the time and date fixed for redemption is more than 15 days following the date
on which such notice of redemption is given, 20%), measured from the close of
business on the Trading Day preceding the day notice of such redemption is
given (or, if such notice is given after the close of business on a
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<PAGE> 22
Trading Day, from such Trading Day) to the close of business on any Trading Day
at or prior to the time and date fixed for redemption, (c) a declaration of a
banking moratorium or any suspension of payments in respect of banks by Federal
or state authorities in the United States or (d) the commencement of or a
significant escalation in a war or armed hostilities or other national or
international calamity directly or indirectly involving the United States which
in the reasonable judgement of the Company could have a material adverse effect
on the market for the Capital Stock.
"Registered Holder" means the Holder of a Registered Security.
"Registered Security" means any Security issued under this
Indenture which is registered as to principal and interest in the Security
Register.
"Rescission Date" has the meaning specified in Section 1108.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company
which owns, directly or indirectly, a Principal Property and any Subsidiary
which, in the opinion of the Board of Directors or any duly authorized
committee thereof, is of material importance to the Company.
"Sale and leaseback transaction" has the meaning specified in
Section 1005.
"Secured Debt" means all Debt that is secured by a Lien.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Bearer Security, including any
Coupon appertaining thereto, or any Registered Security authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal, premium, if any, unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of Debt of the Company, whether any such Debt
exists as of the date of the Indenture
-10-
<PAGE> 23
or is created, incurred, assumed or guaranteed after such date, other than (i)
Debt that by its terms or by operation of law is subordinated to or on a parity
with the Securities and (ii) Debt owed to a subsidiary or partnership of the
Company.
"Special Record Date" has the meaning specified in Section
307.
"Specified Currency" means a currency other than United States
dollars or units of currencies or a composite currency.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a Corporation of which securities having
ordinary voting power, in the absence of contingencies, to elect at least a
majority of directors, are owned directly or indirectly by the Company.
"Surrendered Securities" has the meaning specified in Section
1403.
"Trading Day" means, with respect to Capital Stock, so long as
any Capital Stock is listed or admitted to trading on the NYSE, a day on which
the NYSE is open for the transaction of business, or, if the Capital Stock is
not listed or admitted to trading on the NYSE, a day on which the principal
national securities exchange on which the Capital Stock is listed is open for
the transaction of business, or, if the Capital Stock is not so listed or
admitted for trading on any national securities exchange, a day on which NASDAQ
is open for the transaction of business.
"Trust Indenture Act" (except as otherwise provided in Section
905) means the Trust Indenture Act of 1939, as amended, as in force at the date
as of which this instrument was executed; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"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".
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<PAGE> 24
"Working Debt" means Debt incurred by Subsidiaries of the
Company organized outside the United States for (i) working capital in the
ordinary course of business that is repayable within three years or (ii)
hedging currency risk relating to contracts with customers for the delivery of
products and services with proceeds segregated and identified and limited to
investments and uses designed to accomplish such purpose.
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Board Resolution relating thereto.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by any officer of the
Company, or Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may
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certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. ACTS OF HOLDERS; RECORD DATES.
(a) Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Securities of any series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (1)
by any instrument or any number of instruments of similar tenor executed by
such Holders in person or by agent or proxy appointed in writing, or (2) by the
record of such Holders of Securities voting in favor thereof at any meeting of
such Holders duly called and held, or (3) by a combination of such instrument
or instruments and any such record of such a meeting of such Holders; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this
Indenture and (subject to the requirements of the Trust Indenture Act and
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 104.
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Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) Subject to the requirements of the Trust Indenture Act
and Sections 601 and 603, proof of the execution of any instrument by a Holder
or his agent or proxy shall be sufficient if made 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.
(c) If the Company shall solicit from the Registered Holders
any demand, request, notice, consent, waiver or the taking of any other action,
the Company may, at its option, by a Board Resolution, fix in advance a record
date for the determination of Registered Holders entitled to give such demand,
request, notice, consent or waiver or to take such other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such demand, request, notice, consent, waiver or other action may be given
before or after the record date, but only the Registered Holders of record at
the close of business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Securities Outstanding have authorized or agreed or consented to such demand,
request, notice, consent, waiver or taking of any other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided, however, that no such demand, request, notice, consent, waiver or
taking of any other action by the Holders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the Record Date.
(d) The ownership of Registered Securities shall be proved by
the Security Register or by a certificate of the Person designated by the
Company to keep the Security Register and to act as repository in accordance
with the provisions of Section 305.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) At any time prior to (but not after) the evidencing to
the Trustee 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
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Indenture in connection with such action, any Holder of a Security the serial
number or other distinguishing symbol of which is shown by the evidence to be
included among the serial numbers or other distinguishing symbols 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.
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
Section 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, (i) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any) prescribed for the giving of such notice, and,
(ii) if any of the Securities affected by such event are Bearer Securities,
notice to the Holders thereof shall be sufficiently given (unless otherwise
herein or in the terms of such Bearer Securities expressly provided) if
published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated in Section
301.
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. In any case where notice is given to Holders by publication,
neither the failure to publish such notice, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders.
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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. Notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any other form of
written notice is sufficient, if received.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give any notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. If it
is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Section 107. SHAREHOLDERS, OFFICERS AND DIRECTORS OF COMPANY EXEMPT FROM
INDIVIDUAL LIABILITY.
No recourse under or upon any obligation or covenant contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future shareholder, 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 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
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Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at the
place of payment, then (notwithstanding any other provision on this Indenture
or of the Securities (other than a provision of the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day in such
place with the same force and effect as if made on such Interest Payment Date
or Redemption Date or at the Stated Maturity or Maturity, provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
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Section 115. COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
Security Forms
Section 201. FORMS GENERALLY.
The Securities of each series and any Coupons to be attached
thereto shall be substantially in such form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. Temporary Securities of any
series may be issued as permitted by Section 304. If the form of Securities or
Coupons of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of any such action taken pursuant
thereto, including a copy of the approved form of Securities or Coupons, shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated in Section 303 for the authentication and delivery of such
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated in Section 301,
Bearer Securities shall have Coupons attached.
The definitive Securities and Coupons 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 and Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
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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.
,
-----------------------------
as Trustee
By
---------------------------
Authorized Officer
Section 203. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration or transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, a
copy of which, certified by the Secretary or an assistant or attesting
Secretary of the Company, shall be delivered to the Trustee, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of a particular series, the following:
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(1) the specific designation of the Securities of the
series;
(2) the denominations in which Securities of the series
are authorized to be issued;
(3) the aggregate principal amount of Securities of the
series;
(4) the date or dates on which the principal Securities
of the series will mature or the method of
determining such date or dates;
(5) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which
Securities of the series will be issued;
(6) the rate or rates (which may be fixed or variable) at
which Securities of the series will bear interest, if
any, or the method of calculating such rate or rates;
(7) the times and places where principal of, premium, if
any, and interest, if any, on Securities of the
series will be payable;
(8) the date, if any, after which Securities of the
series may be redeemed and the redemption prices;
(9) the date or dates on which interest, if any, will be
payable and the record date or dates therefor or the
method by which such date or dates will be
determined;
(10) the period or periods within which, the price or
prices at which, the currency or currencies
(including currency units) in 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;
(11) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any
sinking fund or analogous provisions, upon the
happening of a specified event or at the option of a
holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part,
pursuant to such obligations;
(12) the terms and conditions, if any, pursuant to which
Securities of the series are convertible or
exchangeable into Capital Stock or other debt
securities, including the conversion or exchange
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price, the conversion or exchange period and other
conversion or exchange provisions;
(13) the currency or currency units for which Securities
of the series may be purchased or in which Securities
of the series may be denominated and/or the currency
or currency units in which principal of, premium, if
any, and/or interest, if any, on Securities of the
series will be payable and whether the Company or the
holders of any Securities of the series may elect to
receive payments in respect of Securities of the
series in a currency or currency units other than
that in which Securities of the series are stated to
be payable;
(14) any index or formula used to determine the amount of
payments of principal of and premium, if any, and
interest;
(15) if other than the principal amount thereof, the
portion of the principal amount of such Debt
Securities that will be payable upon declaration of
the acceleration of the maturity thereof or the
method by which such portion shall be determined;
(16) the person to whom any interest on any Security of
the series shall be payable if other than the person
in whose name the Security of the series is
registered on the applicable record date;
(17) any addition to, or modification or deletion of, any
Event of Default or any covenant of the Company
specified in the Indenture with respect to Securities
of the series;
(18) the application, if any, of such means of defeasance
or covenant defeasance as may be specified for
Securities of the series;
(19) whether Securities of the series are to be issued in
whole or in part in the form of one or more temporary
or permanent global securities and, if so, the
identity of the depositary for such Global Security
or securities; and
(20) any other terms pertaining to Securities of the
series not inconsistent with the provisions of this
Indenture.
All Securities of any one series shall be substantially
identical except as to denomination, interest rate and maturity and except as
may otherwise be provided in or pursuant to such Board Resolution or in any
such indenture supplemental hereto. The applicable Board Resolution or the
applicable
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supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different Maturities and redemption and
repayment provisions (if any) and bearing interest at different rates, but
shall for all purposes under this Indenture, including, but not limited to,
voting and Events of Default, be treated as Securities of a single series.
Section 302. DENOMINATIONS.
In the absence of any specification as contemplated in Section
301 with respect to the Securities of any series, any Securities of a series
shall be issuable in denominations of U.S. $1,000 (or, if such Securities are
denominated in a currency other than United States dollars or in a composite
currency, 1,000 units of such other currency or composite currency) and any
integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company who execute such Securities may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF SECURITIES.
The Securities shall be signed on behalf of the Company by its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or any of its Vice Presidents, under its corporate
seal which may, but need not, be attested by its Secretary or any of its
Assistant Secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future 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.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee, in accordance with
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the Company Order, shall thereupon authenticate and deliver such Securities
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
the requirements of the Trust Indenture Act) shall be fully protected in
relying upon:
(1) a copy of any Board Resolution or Board Resolutions
relating to such series;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate setting forth the form and terms
of the Securities as required pursuant to Sections 201 and 301,
respectively, and prepared in accordance with the requirements
of the Trust Indenture Act and Section 103; or
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act and Section 103, which
shall state that:
(a) if the form of such Securities has been
established by or pursuant to a Board Resolution as permitted
by Section 201, such form has been established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities have been
established by or pursuant to a Board Resolution as permitted
by Section 301 in conformity with the provisions of this
Indenture; and
(c) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the
enforcement of creditors' rights generally, laws relating to
charges on loans or forbearance of money interest in excess of
a maximum legal rate, and to general principles of equity.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Company
or if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing
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Holders or would adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided, however, that the Trustee, upon the request of the
Company, will resign as Trustee with respect to Securities of any series as to
which such a determination is made, prior to the issuance of such Securities,
and will comply with the request of the Company to execute and deliver a
supplemental indenture appointing a successor Trustee pursuant to Section 901.
Notwithstanding the provisions of Section 301 and this Section
303, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate, Opinion of
Counsel and Company Order otherwise required pursuant to this Section 303 at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication,
shall bear interest, if any, from the date, and shall be payable on the dates,
in each case, which shall be specified as contemplated in Section 301.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, 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 authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities for any
series, the Company may execute, and upon a Company Order the Trustee shall
authenticate and deliver, temporary Securities for such series printed,
lithographed, typewritten or otherwise produced. Temporary Securities of any
series shall be issuable, with or without Coupons, in any authorized
denomination, and substantially of the tenor
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or form of the definitive Securities of such series in lieu of which they are
issued but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Temporary
Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities in lieu of which they are issued.
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 (together with any unmatured Coupons) in exchange
therefor without charge at each office or agency to be maintained by the
Company for that purpose pursuant to Section 1002, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of definitive Securities of the same
series of authorized denominations having the same interest rate, Maturity and
redemption and repayment provisions and bearing interest from the same date as
such temporary Securities; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security;
and provided further that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Trustee shall have received
from the Person entitled to receive the definitive Bearer Security a
certificate substantially in the form approved in the Board Resolutions
relating thereto and such delivery shall occur only outside the United States
of America. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities
of the same series authenticated and delivered hereunder.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company will keep, either at the office or agency
designated and maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York, in accordance with the provisions of Section
1002, or at any of such other offices or agencies as may be designated and
maintained in accordance with the provisions of Section 1002, a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will register, and will register the transfer of, Registered Securities of a
series. Each such register is sometimes herein referred to as a "Security
Register". Each Security Register shall be in written form in the English
language or in any other form capable of being converted into such form within
a reasonable time. At all normal business hours such Security Register shall
be open for inspection by the Trustee and any Security Registrar other than the
Trustee.
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 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series and of
like tenor in any authorized
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denomination for a like aggregate principal amount and having the same interest
rate, Maturity, repayment and redemption provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any Coupons appertaining thereto (except for Coupons attached to
any temporary global Bearer Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor in other authorized denominations, in an equal aggregate
principal amount and having the same interest rate, Maturity, repayment and
redemption provisions. Registered Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Company
for the purpose as provided in Section 1002, and the Company shall execute, and
the Trustee shall authenticate and deliver, in exchange therefor the Registered
Securities of the same series and having the same interest rate and Maturity
which the Holder making the exchange shall be entitled to receive, bearing
numbers or other distinguishing symbols not contemporaneously outstanding. Each
Person designated by the Company pursuant to the provisions of Section 1002 as
a Person authorized to register and register transfer of the Registered
Security is sometimes herein referred to as a "Security Registrar".
Unless otherwise specified as contemplated in Section 301, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or matured Coupon in default, such exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing Coupon, or the surrender of such missing Coupon may be waived
by the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States of America. Notwithstanding the foregoing, in case any Bearer Security
of any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at such
office or agency on (i) any Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the
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opening of business at such office or agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such Coupon is so surrendered with such Bearer
Security, such Coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date of payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such Coupon,
when due in accordance with the provisions of this Indenture.
The Company will at all times designate one Person (who may be
the Company and who need not be a Security Registrar) to act as repository of a
master list of names and addresses of the Holders of the Registered Securities.
The Corporate Trust Office of the Trustee shall act as such repository unless
and until some other Person is, by written notice from the Company to such
office or agency and each Security Registrar, designated by the Company to act
as such. The Company shall cause each Security Registrar to furnish to such
repository, on a current basis, such information as to all registrations of
transfer and exchanges effected by such Security Registrar, as may be necessary
to enable such repository to maintain the master list of Registered Holders on
as current a basis as is practicable.
No Person shall at any time be designated as or act as a
Security Registrar unless such Person is at such time empowered under
applicable law to act as such and duly registered to act as such under and to
the extent required by applicable law and regulations.
Every Registered Security presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
of transfer or exchange in form satisfactory to the Company and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
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
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Company shall not be required (1) to exchange or register
a transfer of any Securities of any series for a period of 15 days next
preceding the selection of Securities of that series to be redeemed, (2) to
exchange or register a transfer of any Registered Securities selected, called
or being called for redemption or surrendered for repayment in whole or in part
except, in the case of any Security to be redeemed or repaid in part, the
portion thereof not so to be redeemed or
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repaid, or (3) to exchange any Bearer Security so selected for redemption,
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor; provided, however, that such Registered Security
shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise
specified or contemplated in Section 301, no Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906, and 1107 for
the Securities of, and no transfer of a Global Security of any series may be
registered to, any Person other than the Depositary for such Security or its
nominee unless (1) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so exchangeable and the
transfer thereof so registerable, or (3) there shall have occurred and be
continuing an Event of Default, or an event which after notice or lapse of time
would be an Event of Default, with respect to the Securities evidenced by such
Global Security. Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clauses (1), (2) or
(3) of the preceding sentence or such other conditions as may be specified as
contemplated in Section 301 for such series, such that the Securities of such
series may be exchanged for Bearer Securities, such Global Security may be
exchanged for Registered Securities in the names of, and the transfer of such
Global Security may be registered to, such Persons (including Persons other
than the Depositary with respect to such series and its nominees), as such
Depositary shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Security shall also
be a Global Security and shall bear the legend specified in Section 203 except
for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, a Global Security pursuant to the preceding
sentence.
Section 306. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES.
In case any temporary or definitive Security or Coupon shall
become mutilated or defaced or be destroyed, lost or stolen, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company may in its discretion execute,
and the Trustee shall authenticate and deliver, a new Registered Security, if
such surrendered Security was a Registered Security, or a new Bearer Security
with Coupons corresponding to the Coupons appertaining to the surrendered
Security, if such surrendered Security was a Bearer Security, which shall be of
the same series and of like tenor and aggregate principal amount, bearing a
number or other distinguishing symbol 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
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Company and to the Trustee (and any agent of the Company or Trustee, if
requested by the Company) 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, or of such Coupon appurtenant thereto, and of
the ownership thereof.
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 that 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 in its discretion 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), if
the applicant for such payment shall furnish to the Company and to the Trustee
(and any agent of the Company or Trustee, if requested by the Company) such
security or indemnity as any of them may require 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.
Every substituted Security (and every appurtenant Coupon, if
any) of any series issued pursuant to the provisions of this Section by virtue
of the fact that any such 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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise specified for a particular series pursuant
to Section 301, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Registered Security (or one or more
Predecessor Securities) is
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registered in the Security Register at the close of business on the Record Date
for such interest either (i) by check mailed to the address of such Person as
referenced in the Security Register or (ii) by wire transfer to an account
designated by such Person pursuant to an arrangement that is satisfactory to
the Company and the Trustee. Unless otherwise provided pursuant to Section
301, the Company shall pay to the Trustee or the Paying Agent the aggregate
amount of interest in immediately available funds by 10:00 A.M. New York City
time on the Interest Payment Date. The Trustee shall not be held responsible
or liable for any loss resulting from a failure of the federal funds wire
system or any other occurrence beyond its control in connection with wire
transfers made pursuant to this Section 307.
Except as otherwise specified for a particular series pursuant
to Section 301, (i) interest on any Bearer Securities shall be paid only
against presentation and surrender of the Coupons for such interest
installments as are evidenced thereby as they mature and (ii) the accredited
amount, if any, with respect to Bearer Securities which constitute Original
Issue Discount Securities shall be paid only against presentation and surrender
of such Securities; in either case at the office of a Paying Agent located
outside the United States of America, unless the Company shall have otherwise
instructed the Trustee in writing, provided that the Company furnishes the
Trustee with an Opinion of Counsel stating that any such instruction for
payment in the United States of America does not cause any Bearer Security to
be treated as a "registration-required obligation" under United States laws and
regulations. The interest on any temporary Bearer Security shall be paid, as
to any installment of interest evidenced by a Coupon attached thereto, only
upon presentation and surrender of such Coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest
on a Bearer Security or Coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount
in United States dollars, then the Company may instruct the Trustee in writing
to make such payments at a Paying Agent located in the United States of
America, provided that the Company furnishes the Trustee with an Opinion of
Counsel stating that provision for such payment in the United States of America
would not cause such Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such
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series (or their respective Predecessor Securities) are registered at
the close of business on a special record date ("Special Record Date")
for the payment of such Defaulted Interest which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the Person in whose name any Registered Security
shall be registered in the Security Register for such series as the absolute
owner of such
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Registered Security (whether or not such Registered 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, subject
to the provisions of this Indenture, any premium or interest on, such
Registered 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.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
Coupon as the absolute owner of such Bearer Security or Coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or Coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
All payments so made to any such Person or bearer, 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 309. CANCELLATION.
All Securities and Coupons surrendered for the purpose of
payment, redemption, conversion, registration of transfer or exchange, or for
credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Company, any Security Registrar, any Paying Agent or any
other agent of the Company or any agent of the Trustee, shall be delivered to
the Trustee and promptly canceled by it or, if surrendered to the Trustee,
shall be promptly canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities and Coupons held by
it and, in the case of canceled Securities, deliver a certificate of
destruction to the Company. If the Company shall acquire any of the
Securities, such acquisition shall not 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 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated in Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. SECURITIES DENOMINATED IN FOREIGN CURRENCIES.
For the purposes of calculating the principal amount of
Securities of any series denominated in a Specified Currency for any purpose
under this Indenture, the principal amount of such Securities at any time
Outstanding shall be
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deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of a spot rate of exchange specified to the
Trustee by the Company in an Officers' Certificate for such Specified Currency
into United States dollars as of the date of any such calculation.
Section 312. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS.
If any Bearer Securities are to be issued in any series of
Securities, the Company will use reasonable efforts to provide for arrangements
and procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that Bearer Securities are sold or resold, exchanged,
transferred and paid only in compliance with such laws and regulations and
without adverse consequences to the Company or the Trustee.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of conversion or registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
and all Coupons appertaining thereto (other than (i) Securities and
Coupons which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (ii) Securities and
Coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003, (iii) Coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived
as provided in Section 305, and (iv) Coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in
Section 1106) have been delivered to the Trustee for cancellation; or
(B) all such Securities, and, in the case of (i) and (ii)
below, any Coupons appertaining thereto, not theretofore delivered to
the Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section 401, the obligations of the Trustee under
Sections 305, 306, 402 and 1002 and the last paragraph of Section 1003 shall
survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) or Depositary as the
Trustee may determine, to the Holders of the particular Securities of such
series for the payment or redemption of which such money has been deposited
with the Trustee, of all sums due and to become due thereon for principal and
any premium and interest.
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ARTICLE FIVE
Remedies
Section 501. EVENTS OF DEFAULT.
"Event of Default", with respect to Securities of a particular
series wherever used herein, means any one of the following events and such
other events as may be established with respect to the Securities of such
series as contemplated in Section 301, continued for the period of time, if
any, and after the giving of notice, if any, designated in this Indenture or as
may be established with respect to such Securities as contemplated in Section
301, as the case may be, unless such event is either inapplicable or is
specifically deleted or modified in, or pursuant to, the applicable Board
Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated in Section 301:
(1) default in the payment of the principal of, or any
premium on, any of the Securities of such series as and when the same
shall become due and payable either at Stated Maturity, upon
redemption, by declaration or otherwise; or
(2) default in the payment of any installment of interest, if
any, upon any of the Securities of such series as and when it shall
become due and payable, and continuance of such default for a period
of 30 days; or
(3) default in the payment of any sinking fund payment, when
and as due and payable by the terms of the Securities of such series;
or
(4) default in the performance, or breach, of any covenant of
the Company in this Indenture or the Securities of such series (other
than a covenant or agreement a default in the performance of which or
a breach of which is elsewhere in this Section 501 specifically dealt
with or which has expressly been included in this Indenture and
designated as being solely for the benefit of series of Securities
other than such 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 such series, a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a " Notice of Default" hereunder; or
(5) default resulting in acceleration of or failure to pay at
maturity (i) other Debt of the Company or Debt that the Company has
guaranteed where the aggregate principal amount so accelerated exceeds
$15 million or (ii) Debt of any Subsidiary which the Company has
directly assumed or on which the Company has otherwise become directly
liable as a result of the exercise
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of remedies upon the occurrence of a default by such Subsidiary in the
performance of its obligations under any agreement guaranteed by the
Company in a principal amount of $15 million or more; without such
involuntary acceleration having been rescinded or annulled within a
period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Debt Securities of such series then Outstanding a
written notice specifying such default and requiring the Company to
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" under this Indenture; provided,
however, that, if such default shall be remedied or cured by the
Company or waived by the holders of such indebtedness before any
judgement or decree for the payment of money due shall have been
obtained or entered, then the Event of Default under this Indenture by
reason thereof shall be deemed likewise to have been thereupon
remedied cured or waived without any action on the part of the Trustee
or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter 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 now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for
all or substantially all of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property, or make any general assignment for
the benefit of creditors; or
(8) any other Event of Default provided with respect to
Securities of such series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
of such series, by notice in writing to
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the Company (and to the Trustee if given by Holders), may declare the entire
principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms of such series) of all of the Securities of such series and any premium
and interest accrued thereon to be due and payable immediately, and upon any
such declaration such principal amount (or specified amount) and any premium
and interest accrued thereon shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of money due shall have been obtained or entered as hereinafter provided,
(1) the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay the premium and 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 declaration of acceleration (with
premium and interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue premium and installments of interest, if any, at the Overdue
Rate applicable to such series to the date of such payment or
deposit), and all amounts payable to the Trustee pursuant to Section
607, and
(2) all Events of Default under the Indenture with respect to
such series of Securities other than the nonpayment of the principal
of such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided in Section 513 or provision shall have been made therefor to
the satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of such series, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences with respect to such series, but no such
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any,
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thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any of the Securities of any series as and when such
interest becomes due and payable, and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of, and
any premium on, any of the Securities of any series as and when the
same becomes due and payable, whether upon Stated Maturity of the
Securities of such series or upon redemption or by declaration or
otherwise, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
by the terms of the Securities of any series,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount then
due and payable on all Securities of such series for principal and any premium
and 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 premium and installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and any further amounts payable to the
Trustee pursuant to Section 607.
Until such demand is made by the Trustee, the Company may pay
the principal of and any premium and interest on the Securities of any series
to the registered Holders, whether or not the principal of and any premium and
interest on the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, 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.
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If an Event of Default with respect to Securities of any
Series 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 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.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor upon the
Securities of any series under Title 11 of the United States Code or any other
similar applicable Federal or State law, or in case a receiver, trustee in
bankruptcy or similar official shall have been appointed for the property of
the Company or such other obligor, or in case of any other similar judicial
proceedings relative to the Company or other obligor upon 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:
(1) to file and prove a claim or claims for the whole amount
of principal (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be
due and payable with respect to such series pursuant to a declaration
in accordance with Section 502) and any premium and interest owing and
unpaid in respect of the Securities of any series, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for any amounts payable to the
Trustee pursuant to Section 607) and of the Holders allowed in any
judicial proceedings relating to the Company or other obligor upon the
Securities of any series, or to the creditors or property of the
Company or such other obligor;
(2) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or of a person performing similar functions in comparable
proceedings; and
(3) to collect and receive any money or other property
payable or deliverable on any such claims, and to distribute all
amounts received with
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respect to the claims of the Holders and of the Trustee on their
behalf (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 607 and
incurred by it); and any trustee in bankruptcy, receiver or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee and, in the event that the Trustee shall
consent to the making of payments directly to the Holders, to pay to
the Trustee costs and expenses of collection and any further amounts
payable to the Trustee pursuant to Section 607 and incurred by it.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Holder 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
Holder in any such proceeding, except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, or under
the Securities of any series, may be prosecuted and enforced by the Trustee
without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEYS COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in the case of distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities or Coupons in
respect of which money has been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities in reduced principal amounts in
exchange for the presented Securities of like series and tenor if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
including all sums paid or advanced by the Trustee hereunder and the
reasonable compensation expenses and disbursements of the Trustee, its
agents and counsel and all other amounts due to the Trustee under
Section 607;
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SECOND: In case the principal of the Outstanding Securities
in respect of which money has been collected shall not have become and
be then due and payable, to the payment of interest, if any, on the
Securities in default in the order of the Maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee and to the extent permitted by
applicable law) upon the overdue installments of interest at the
Overdue Rate applicable to such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference; provided, however, that such payments shall be made subject
to the provisions of Article Fifteen hereunder, if applicable;
THIRD: In case the principal of the Outstanding Securities in
respect of which money has been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for
principal and any premium and interest, with interest upon the overdue
principal, and (to the extent that such interest has been collected by
the Trustee and to the extent permitted by applicable law) upon overdue
premium and installments of interest, if any, at the Overdue Rate
applicable to such Securities; and in case such money shall be
insufficient to pay in full the whole amount so due and unpaid upon
such Securities, then to the payment of such principal and any premium
and interest, without preference or priority of principal over premium
and interest, if any, or of interest, if any, over principal and
premium, if any, or of premium, if any, over principal and interest, if
any, or of any installment of interest, if any, over any other
installment of interest, if any, or of any Security over any other
Security, ratably to the aggregate of such principal and accrued and
unpaid premium and interest, if any; provided, however, that such
payments shall be made subject to the provisions of Article Fifteen
hereunder, if applicable; and
FOURTH: To the payment of the remainder, if any, to the
Company.
Section 507. LIMITATION ON SUITS.
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 in
bankruptcy, receiver or other similar official or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of default with respect to Securities of such series and of
the continuance thereof, as hereinbefore provided;
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(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute such action, suit or
proceedings in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has neglected or refused to institute
any such action, suit or proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period pursuant to
Section 512;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of any Securities 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 Holder of Securities, or
to obtain or to seek to obtain priority or preference over any other 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.
For the protection and enforcement of the provisions of this Section, each
Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
In case the Trustee or any Holder 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 or to such Holder, then and in every such case the
Company, the Trustee and the Holders shall be restored respectively to their
former positions and rights hereunder,
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and all rights, remedies and powers of the Company, the Trustee and the Holders
shall continue as though no such proceedings had been taken.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 507 and except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right, power or remedy accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right, power or
remedy or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein. Subject to Section 507, every power and remedy given by
this Indenture or by law to the Trustee or to the Holders of any or all series,
as the case may be, may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Holders of such series or all
series, as the case may be.
Section 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee by this Indenture with respect to Securities of such series; provided,
however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee (subject to the requirements of the Trust
Indenture Act) shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or
if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein, it being understood
that the Trustee shall have no duty to ascertain whether or not such
action or proceeding would be unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Holders.
Section 513. WAIVER OF PAST DEFAULTS.
Prior to the declaration of the acceleration of the Maturity
of the Securities of any particular series, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series may, on
behalf of the Holders of all the Securities of such series, waive any past
default or Event of Default with respect to such series and its consequences,
except a default not theretofore cured
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected as provided in Section
902.
In the case of any such waiver, the Company, the Trustee and
the Holders of the Securities of each series affected shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
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 impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, however, that neither this Section 514
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company.
Section 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or
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take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to any series of Securities,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statement, certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. NOTICE OF DEFAULTS.
The Trustee shall transmit notices of default to the Holders
in accordance with section 315(b) and related provisions of the Trust Indenture
Act. For the purpose of this Section 602, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. CERTAIN RIGHTS OF THE TRUSTEE.
Subject to the requirements of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Order or
Company Request (unless other evidence in respect thereof be herein
specifically prescribed) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good
faith and in reliance thereon;
(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,
order or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request, order
or direction;
(f) 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, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities
of any series affected; but the Trustee, in its discretion may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(i) the Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder;
(j) the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions, or
agreements on
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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;
(k) 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; and
(l) except for (i) a default under Sections 501(1), (2) or
(3) 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 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities, provided
that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of any of
the Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent and, subject to the
requirements of the Trust Indenture Act, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
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Section 606. MONEY HELD IN TRUST.
Subject to the provisions of Section 1003, all money received
by the Trustee or any Paying Agent, all money and Government Obligations
deposited with the Trustee pursuant to Section 1302 or Section 1303 and all
money received by the Trustee in respect of Government Obligations deposited
with the Trustee pursuant to Section 1302 or Section 1303, shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any money received by it
hereunder except as otherwise agreed by the Company. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any such
money shall be paid from time to time in accordance with a Company Order.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services
rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, or expense incurred without negligence
or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 607 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities.
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When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or (7), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
Section 608. RIGHT TO RELY ON OFFICERS' CERTIFICATE.
Subject to the requirements of the Trust Indenture Act,
whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 609. ELIGIBILITY.
The Trustee for each series of Securities hereunder shall at
all times be a Person organized and doing business under the laws of the United
States of America or of any State or the District of Columbia, having a
combined capital and surplus of at least $50,000,000, and eligible under the
provisions of the Trust Indenture Act. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person at any time shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in this
Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor Trustee with respect to such
series pursuant to any of the provisions of this Section 610 shall become
effective upon acceptance of appointment by the successor Trustee as provided
in Section 611.
(b) The Trustee may resign at any time with respect to one or
more or all series of Securities by giving 90 days written notice of
resignation to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor Trustee with respect to the
applicable series by written instrument in duplicate, executed by authority of
the Board of Directors, one copy
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of which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee. If no successor Trustee shall have been so appointed
with respect to any series and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee,
or any Holder who has been a bona fide Holder of a Security of the applicable
series for at least six months may, subject to the requirements of the Trust
Indenture Act, on behalf of itself and all others similarly situated, petition
any such court for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may at any time remove the Trustee
with respect to Securities of such series and appoint a successor Trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Company the evidence
provided for in Section 104 of the action in that regard taken by the Holders.
(d) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with
the provisions of Section 609 with respect to any series of Securities
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(2) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect to
the applicable series of Securities (or all series, if required) and appoint a
successor Trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or
(ii) subject to the requirements of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor Trustee with respect to such series.
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(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of the Trustee with respect to any series of
Securities for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee for that series of Securities. If, within one year
after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such series
shall have been so appointed by the Company or the Holders of such series and
accepted appointment in the manner hereinafter provided, subject to Section
514, any Holder who has been a bona fide Holder of a Security of that series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Any successor Trustee appointed as provided in Section 610
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
Trustee hereunder, with like effect as if originally named as Trustee for such
series hereunder; but, nevertheless, on the written request of the Company or of
the successor Trustee, upon payment (or due provision therefor) of any amounts
then due it pursuant to Section 607, the predecessor Trustee ceasing to act
shall, subject to Section 1003, pay over to the successor Trustee all money at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers, duties and
obligations. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 607.
If a successor Trustee is appointed with respect to the
Securities of one or more (but not all) series, the Company, the predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts
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and duties of the predecessor Trustee with respect to the Securities of any
series as to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor Trustee shall, with respect to such series, be
qualified under the requirements of the Trust Indenture Act and eligible under
the provisions of Section 609.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of Securities of any series for which such successor Trustee is acting
as Trustee in the manner provided for notices to the Holders of Securities in
Section 106. If the Company fails to give such notice within ten days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be given at the expense of the Company.
Section 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such Person shall be
qualified under the requirements of the Trust Indenture Act and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee by merger, conversion or consolidation may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of such successor to the
Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation, in the name of any predecessor hereunder;
provided, however, that such successor shall use the predecessor's name only in
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such circumstances set forth in this Section and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities or such series issued upon
original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then for the purposes of this Section 614,
the combined capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Person shall be otherwise eligible under
this Section 614, without the execution
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or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 614,
and the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
and referred to in the within-mentioned Indenture.
_____________________________,
As Trustee
By __________________________,
As Authenticating Agent
By ___________________________
Authorized Officer
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ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. COMPANY TO FURNISH TRUSTEE
NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after each Record
Date for the Securities of any series (and on dates as specified as
contemplated in Section 301 for any series of Original Issue Discount
Securities which by their terms bear interest only after Maturity), a
list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of the Securities of such series as of
each such Record Date (and as of dates as specified as contemplated in
Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such is furnished; provided, however, that if and so
long as the Trustee shall be the Security Registrar for Securities of a
series, no such list need be furnished with respect to such series of
Securities.
Section 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Registered Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
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Section 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to the Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission,
and transmit to the Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Trust Indenture Act.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or
into any other Person (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of all or substantially all the property or assets of the
Company, to any other Person (whether or not affiliated with the Company)
authorized to acquire and operate the same; provided, however, and the Company
hereby covenants and agrees, that upon any such consolidation, merger,
transfer, conveyance or lease:
(1) the due and punctual payment of the principal of and any
premium and interest on all of 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, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered
to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged,
or by the Person which shall have acquired or leased such property or
assets and such person shall be organized and existing under
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the laws of the United States of America or of any State or the
District of Columbia;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; provided, however, that a transaction will be deemed to be
in violation of this clause (2) only with respect to those series of
Securities whereby such Event of Default or such event shall have
occurred and be continuing; and
(3) the Trustee, subject to the requirements of the Trust
Indenture Act and Section 603, shall receive an Opinion of Counsel and
Officers' Certificate to the effect that such consolidation, merger,
conveyance, transfer or lease and any such assumption complies with
the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or
substantially all the property or assets of the Company in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
In case of any such consolidation, merger, conveyance,
transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
Supplemental Indentures
Section 901. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default and to provide
with respect thereto for any particular periods of grace after default
(which may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default;
or
(4) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities;
provided, however, that any such addition, change or elimination (i)
shall neither (A) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(5) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to cure any ambiguity, to correct or supplement any
provision 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 change or eliminate any provision
or to make any other provisions with respect to matters or questions
arising under this Indenture or under any supplemental indenture as the
Company may deem necessary or desirable; provided, however, that such
action shall
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not adversely affect the interests of the Holders of the Outstanding
Securities of any series.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the consent
of the Holders of the Outstanding Securities of any Series, notwithstanding any
of the provisions of Section 902.
Section 902. SUPPLEMENTAL INDENTURES WITH
CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (each such series voting as a single class), by act of
such Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights and
obligations of the Company and the rights of the Holders of the Securities of
such series under this Indenture; provided, however , that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof, or reduce any premium thereof or change
the time of payment of any premium thereon, or reduce the rate or
change the time of payment of interest thereon, if any, or reduce any
amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or any premium or interest thereon, payable
at any place of payment or in any coin or currency other than as
provided in the Security or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
impair, if the Securities provide therefor, any right of repayment at
the option of the Holder, or impair the right to institute a suit for
the enforcement of any payment on or with respect to any Security
pursuant to Section 507;
(2) reduce the aforesaid percentage of Outstanding Securities
the consent of the Holders of which is required for any such
supplemental indenture; or
(3) adversely change or impair the right of any Holder to
convert or exchange Securities of any series, the terms of which
provide for conversion, at the rate and upon the terms provided in the
Indenture.
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series. The preceding
sentence shall not, however, raise any inference as to whether or not a
particular series is affected by any supplemental indenture not referred to in
such sentence.
It shall not be necessary for the consent of the Holders under
this Section 902 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 902, the
Company shall give notice thereof to the Holders of Securities of each series
affected thereby in the manner provided for notices to the Holders of Securities
in Section 106, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be 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 any such supplemental
indenture shall form a part of this Indenture for all purposes and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as in effect at
the date such supplemental indenture is executed.
Section 906. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may bear a
notation in form approved by the Trustee for 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 Company, to any such supplemental indenture
may be prepared and executed by the Company, authenticated and delivered by the
Trustee in exchange for the Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and any premium and interest on, the Securities of that
series in accordance with the terms of the Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will designate and maintain in the Borough of
Manhattan, The City of New York, for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Securities of each series that is convertible may be presented for
conversion. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served upon the agent of the
Trustee, located at 77 Water Street, New York, N.Y. 10005, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO
BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of the principal
of and any premium or interest on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of the principal of or any premium or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default
referred to in clause (2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal and any premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
The City of New York or other place of payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. LIMITATION ON LIENS.
The Company will not, and will not permit any Subsidiary to,
incur, issue, assume or guarantee any Debt secured after the date of this
Indenture by pledge of, or mortgage or other lien on ("Lien"), any Principal
Property of the Company or any Subsidiary, or any shares of stock or Debt of
any Subsidiary without effectively providing that the Debt Securities of all
series issued pursuant to this Indenture (together with, the Company shall so
determine, any other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Debt Securities ) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless
after giving effect thereto, the aggregate principal amount of all such secured
Debt then outstanding which would otherwise be prohibited, plus all
Attributable Debt of the Company and its Subsidiaries in respect of sale and
leaseback transactions (as defined in Section 1005) occurring after the date of
this Indenture and existing at such time which would otherwise be prohibited by
Section 1005, would not exceed 5% of Consolidated Net Tangible Assets. This
restriction does not apply to, and there shall be excluded in computing secured
Debt for the purpose of such restriction, Debt secured by:
(1) Liens on property, capital stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or
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to secure the payment of or any part of the purchase price or
construction cost or commencement of operation thereof or to secure
any Debt incurred prior to, at the time of, or within 180 days after,
the later of the acquisition of such property or shares or Debt, the
completion of any such construction and the commencement of operation
for the purpose of financing all or any part of the purchase price or
construction cost or commencement of operation thereof, provided that
any such Liens shall only extend to the above-described property or
property on which the above-described property is situated;
(2) Liens on property of, or on any shares of stock or Debt
of, any corporation or other Person existing at the time such
corporation becomes a Restricted Subsidiary;
(3) Liens on property of, or on any shares of capital stock or
Debt of any Corporation or other Person existing at the time such
Corporation or other Person is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of sale, lease or
other disposition of all or substantially all the properties of a
corporation or other Person to the Company;
(4) Liens (a)(i) in favor of the United States of America or
any State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, or (ii) in favor any other country, or any political
subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute, or (b)(i) for taxes,
assessments or governmental charges or levies in each case not then
due and delinquent or the validity of which is being contested in good
faith by appropriate proceedings, and (ii) for materialmen's,
mechanics', carriers', workmen's, repairmen's, landlord's or other
like Liens, or deposits to obtain the release of such Liens;
(5) Liens on any property or assets of any Restricted
Subsidiary to secure Debt owing by it to the Company or any other
Restricted Subsidiary;
(6) Liens arising out of judgments or awards against the
Company or any subsidiary that the Company or such subsidiary is
contesting in good faith;
(7) Liens made in favor of any customer arising in the
ordinary course of business of the Company or any subsidiary in
respect of payments made by or on behalf of such customer for goods
produced or services rendered to such customer;
(8) Liens existing at the date of this Indenture;
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(9) Liens created to secure Project Debt, but only to the
extent that any such Lien does not extend beyond the assets,
contractual rights and revenues of such project and the capital stock
of the corporation owning such project, and any extension, renewal,
refunding, replacement or refinancing (or successive extensions,
renewals, replacements, refundings or refinancings) as a whole or in
part of any Liens referred to in this clause (9); and
(10) Any extension, renewal, refunding or replacement (or
successive extensions, renewals, refundings or replacements), as a
whole or in part, of any Lien referred to in the foregoing clauses (1)
through (3) and (8), inclusive; provided, however, that (i) such
extension, renewal, refunding or replacement Lien shall be limited to
all or a part of the same property, shares of stock or Debt that
secured the Lien extended, renewed, refunded or replaced (plus
improvements on such property) and (ii) the Debt secured by such Lien
at such time is not increased.
Section 1005. LIMITATION ON SALES AND LEASEBACKS.
The Company will not, and will not permit any Subsidiary to,
enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Company or any Subsidiary) or to which any such
lender or investor is a party, providing for the leasing by the Company or any
such Subsidiary of any Principal Property which has been owned and operated by
the Company or such Subsidiary for more than 180 days and which has been sold
or transferred by the Company or such Subsidiary to such lender or investor or
to any Person to whom funds have been advanced by such lender or investor
(each, a "sale and leaseback transaction") unless, after giving effect thereto,
the aggregate amount of all Attributable Debt of the Company and its
Subsidiaries in respect of such sale and leaseback transactions occurring after
the date of this Indenture and existing at such time which would otherwise be
prohibited under this Section 1005 plus all secured Debt then outstanding of
the Company and its Subsidiaries incurred after the date of this Indenture
which would otherwise be prohibited by Section 1004, would not exceed 5% of
Consolidated Net Tangible Assets. This restriction does not apply to, and
there shall be excluded from Attributable Debt in any computation under such
restriction, Attributable Debt with respect to any sale and leaseback
transaction under any of the following circumstances:
(1) the lease in such sale and leaseback transaction is for a
period, including renewals, of not in excess of three years; or
(2) the property which is the subject of the sale and
leaseback transaction is property capable of being subject to a Lien
described in clauses (1), (2), (3), (8) or (9) in Section 1004; or
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(3) the Company or a Subsidiary, within 180 days after the
sale or transfer shall have been made by the Company or by any such
Subsidiary, applies an amount equal to the lesser of (i) Attributable
Debt or (ii) the net proceeds of any such sale or transfer to (a) the
acquisition of other Principal Property of equal fair market value (as
determined by the Board of Directors) or (b) the retirement of
indebtedness for pari passu borrowed money (including Securities of
any Series).
Section 1006. CERTIFICATE OF COMPLIANCE.
The Company shall deliver a certificate of compliance of the
Company to the Trustee on or before April 30 of each year pursuant to section
314(a)(4) of the Trust Indenture Act.
Section 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 and 1005 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of such series shall, by the act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
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Section 1008. LIMITATION ON DEBT INCURRED BY RESTRICTED SUBSIDIARIES.
The Company will not permit any Restricted Subsidiary to
directly or indirectly, incur, assume or suffer to exist any Debt, unless,
after giving effect thereto, the aggregate amount of then outstanding Debt
incurred by all Restricted Subsidiaries, excluding all Secured Debt and
Attributable Debt in respect of sale and leaseback transactions, shall not
exceed 10% of Consolidated Net Tangible Assets. The immediately preceding
sentence shall not apply to the incurrence or issuance of (a) Existing Debt,
(b) Working Debt, (c) Debt of a Restricted Subsidiary which represents the
assumption by such Restricted Subsidiary of Debt of another Restricted
Subsidiary as a result of the merger or acquisition of such Restricted
Subsidiary, (d) Debt of any Corporation existing at the time such Corporation
becomes a Restricted Subsidiary, (e) Permitted Secured Debt and (f) Project
Debt which does not constitute Secured Debt.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated in Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of the redemption at the election of
the Company of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed at
the Redemption Price and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the
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particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For the purpose of such selection in case of redemption of
less than all of the Securities of any series, the Trustee and the Company
shall have the option to treat as Outstanding Securities any Securities of such
series which are surrendered for conversion after the fifteenth date
immediately preceding the mailing of notice of such redemption and need not
treat as Outstanding Securities any Securities authenticated and delivered
during such period in exchange for the unconverted portion of any Securities
converted in part during such period.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
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(4) if applicable, the current conversion price or rate,
(5) if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other day as may be specified
as contemplated in Section 301 for Securities of any series),
(6) if applicable, that Holders who want to convert
Securities called for redemption must satisfy the requirements for
conversion contained in such Securities,
(7) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that, unless the Company defaults in making such
redemption payment, interest thereon, if any, or in the case of
Original Issue Discount Securities, the original issue discount, shall
cease to accrue on and after such date,
(8) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(9) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at Company Request,
by the Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 A.M. New York City time on any Redemption
Date, the Company shall deposit in immediately available funds with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003 and as required by the
Trust Indenture Act) an amount of money (in the currency or units of currency
in which the Securities so called for redemption are denominated or an
appropriate equivalent thereof) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date, other
than any Securities called for redemption on such date which have been
converted prior to the date of such deposit.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the right to
convert such Securities or
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portions thereof, if the terms of such Securities provide for conversion
pursuant to Section 301, shall terminate at the close of business on the
Redemption Date or such other day as may be specified as contemplated in
Section 301 for Securities of such series. On presentation and surrender of
such Securities for redemption in accordance with such notice, such Securities
shall be paid and redeemed by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated in Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal thereof so to be redeemed
shall, until paid, bear interest from the Redemption Date at the Overdue Rate
applicable to such Security and such Security shall remain convertible into
Capital Stock until the principal of such Security shall have been paid. If
any Security called for redemption pursuant to Section 1101 is converted
pursuant to Article Fourteen, any monies deposited with the Trustee for the
purpose of paying or redeeming any such Security shall be promptly paid to the
Company.
Section 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at the place specified in the notice of redemption (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 1108. RESCISSION OF REDEMPTION.
In the event that this Section 1108 is specified to be
applicable to a series of Securities pursuant to Section 301 and a Redemption
Rescission Event shall occur following any day on which a notice of redemption
shall have been given pursuant to Section 1104 hereof but at or prior to the
time and date fixed for redemption as set forth in such notice of redemption,
the Company may, at its sole option, at any time prior to the earlier of (i)
the close of business on that day which is two Trading Days following such
Redemption Rescission Event and (ii) the time and date fixed for redemption as
set forth in such notice, rescind the redemption to which such notice of
redemption shall have related by making a public announcement of such
rescission (the date on which such public announcement shall
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have been made being hereinafter referred to as the "Rescission Date"). The
Company shall be deemed to have made such announcement if it shall issue a
release to the Dow Jones News Service, Reuters Information Services or any
successor news wire service. From and after the making of such announcement,
the Company shall have no obligation to redeem Securities called for redemption
pursuant to such notice of redemption or to pay the Redemption Price therefor
and all rights of Holders of Securities shall be restored as if such notice of
redemption had not been given. As promptly as practicable following the making
of such announcement, the Company shall telephonically notify the Trustee and
the Paying Agent of such rescission. The Company shall give notice of any such
rescission by first-class mail, postage prepaid, mailed as promptly as
practicable but in no event later than the close of business on that day which
is five Trading Days following the Rescission Date to each Holder of Securities
at the close of business on the Rescission Date, to any other Person that was a
Holder of Securities and that shall have surrendered Securities for conversion
following the giving of notice of the subsequently rescinded redemption and to
the Trustee and the Paying Agent. Each notice of rescission shall (w) state
that the redemption described in the notice of redemption has been rescinded,
(x) state that any Converting Holder shall be entitled to rescind the conversion
of Securities surrendered for conversion following the day on which notice of
redemption was given but on or prior to the date of the mailing of the Company's
notice of rescission, (y) be accompanied by a form prescribed by the Company to
be used by any Converting Holder rescinding the conversion of Securities so
surrendered for conversion (and instructions for the completion and delivery of
such form, including instructions with respect to any payment that may be
required to accompany such delivery) and (z) state that such form must be
properly completed and received by the Company no later than the close of
business on a date which shall be 15 Trading Days following the date of the
mailing of such notice of rescission.
ARTICLE TWELVE
Sinking Funds
Section 1201. APPLICABILITY OF ARTICLE.
Securities of any series which are subject to a sinking fund
for the retirement of Securities of a series shall be subject to such sinking
fund in accordance with their terms and (except as otherwise specified as
contemplated in Section 301 for Securities of such series) in accordance with
this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash
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amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities and for any Securities which have been converted pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the
terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance
Section 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
If pursuant to Section 301 provision is made for either or
both of (1) defeasance of the Securities of a series under Section 1302 or (2)
covenant defeasance of the Securities of a series under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article, shall be applicable to the Securities of such
series, and the Company may at its option by or pursuant to a Board Resolution,
at any time, with respect to the Securities of such series, elect to have
either Section 1302 (if applicable) or Section 1303 (if applicable) be applied
to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article.
Section 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1302 applied to the Outstanding Securities of a
defeasible series, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth in Section 1304 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 of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium or interest on
such Securities when such payments are due, (2) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections
304, 305, 306, 308, 309, 506 and 1003, and otherwise the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer or
exchange and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option provided in Section 1301 to have this Section
1302 applied to the Outstanding Securities of any defeasible series
notwithstanding the prior exercise of its option provided in Section 1301 to
have Section 1303 applied to the Outstanding Securities of such series.
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Section 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1303 applied to the Outstanding Securities of any
defeasible series, the Company shall be released from its obligations under
Sections 1004 and 1005 and Sections 501(4) and 501(5) with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth in Section 1304 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 specified Section with respect to it, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of such series:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another Trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such Securities, (A) money in an amount, or (B) Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, sufficient, without reinvestment, 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, (i) the
principal of and any premium on and each installment of principal of
and any premium and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of
principal or interest and (ii) 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. For
this purpose, "Government Obligations" means securities that are (x)
direct obligations of the United States of America or, if specified as
contemplated in Section 301, the government which issued the currency
in which the Securities of such series are payable, for the payment of
which its full faith
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and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America or, if specified as contemplated in Section 301, such
government which issued the currency in which the Securities of such
series are payable, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America
or such other government, which, in either case, are not callable or
redeemable at the option of the obligor thereof, and shall also include
a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or
interest on any such Government Obligation held by such custodian for
the account of the holder of such depository receipt; provided,
however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt;
(2) No Event of Default or event which, with notice or lapse
of time or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to any
securities of the Company;
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound;
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;
(6) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in
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the same manner and at the same times as would have been the case if
such defeasance had not occurred;
(7) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred;
(8) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended,
or such trust shall be qualified under such Act or exempt from
regulation thereunder;
(9) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301; and
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
Section 1305. DEPOSITED MONEY AND GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS.
Subject to the provisions of Section 1003, all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee--collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through a Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and any premium
and interest
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received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 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 an equivalent defeasance or covenant defeasance.
Section 1306. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with this Article by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and each series of Securities shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article until such time as the Trustee or the Paying Agent is permitted to
apply all such money or Governmental Obligations in accordance with this
Article; provided, however, that, if the Company has made any payment of
interest on or principal of any series of Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such series of Securities to receive such payment from the
money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
Convertible Securities
Section 1401. APPLICABILITY OF ARTICLE.
Securities of any series which are convertible into Capital
Stock at the option of the Holders thereof shall be convertible in accordance
with their terms and (unless otherwise specified in one or more indentures
supplemental hereto or in a resolution of the Board of Directors as
contemplated in Section 301 for Securities of any series) in accordance with
this Article. Each reference in this Article Fourteen to "a Security" or "the
Securities" refers to the Securities of the particular series that are
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Securities of any series are convertible refers to Capital
Stock into which the Securities of such series are convertible in accordance
with their terms (as specified as contemplated in Section 301). If more than
one series of Securities with conversion privileges are Outstanding at any
time, the provisions of this Article Fourteen shall be applied separately to
each such series.
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Section 1402. RIGHT OF HOLDERS TO CONVERT SECURITIES.
Subject to and upon compliance with the terms of the
Securities and this Article Fourteen, at the option of the Holder thereof, any
Security of any series of any authorized denomination, 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,
be converted into duly authorized, validly issued, fully paid and nonassessable
shares of the class, or combination of classes, of Capital Stock, as specified
in such Security, at the 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 if 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 date fixed for redemption except that in the case
of redemption at the option of the Holder, if specified in the terms of such
securities, such option to convert shall terminate upon receipt of written
notice of the exercise of such option to redeem, or if an adjustment in the
conversion rate has taken place pursuant to the provisions of Section 1405,
then at the applicable conversion rate 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 1002
accompanied by a written notice of election to convert as provided in Section
1403 and, if so required by the Company and the Trustee, by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by the Holder 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 canceled by it, or shall, if surrendered to the Trustee, be
canceled by it, as provided in Section 309.
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 1405 or such other or different terms, if any, as
may be specified by Section 301 for Securities of such series. Provisions of
this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of it.
Section 1403. ISSUANCE OF SHARES OF CAPITAL
STOCK ON CONVERSION.
(1) As promptly as practicable after the surrender, as
herein provided, of any Security or Securities for conversion, 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 shares of Capital Stock into which such
Security or Securities may be
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converted in accordance with the terms thereof and the provisions of this
Article Fourteen. Prior to the delivery of such certificate or certificates,
the Company shall require a 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 shares of Capital Stock upon conversion of such Security or Securities shall
be treated for all purposes as having become the record holder or holders of
such shares of Capital Stock at such time and such conversion shall be at the
conversion rate 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 the Trustees or any 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 a Security may be converted is not a
Business Day in a place where the conversion agent for the applicable series of
Securities is located, the Security may be surrendered to that conversion agent
on the next succeeding day that is a Business Day.
The Company will not be required to deliver certificates for
shares of Capital Stock 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 shares of Capital Stock shall be delivered
as soon as the stock transfer books shall again be opened.
(2) Notwithstanding anything to the contrary contained
herein, in the event the Company shall have rescinded a redemption of
Securities pursuant to Section 1108 hereof, any Holder of Securities that shall
have surrendered Securities for conversion following the day on which notice of
the subsequently rescinded redemption shall have been given but prior to the
later of (a) the close of business on the Trading Day next succeeding the date
on which public announcement of the rescission of such redemption shall have
been made and (b) the date of the mailing of the notice of rescission required
by Section 1108 hereof (a "Converting Holder") may rescind the conversion of
such Securities surrendered for conversion by (i) properly completing a form
prescribed by the Company and mailed to Holders of Securities (including
Converting Holders) with the Company's notice of rescission, which form shall
provide for the certification by any Converting Holder rescinding a conversion
on behalf of any beneficial owner (within the meaning of Rule 13d-3
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under the Securities Exchange Act of 1934) of Securities that the beneficial
ownership (within the meaning of such Rule) of such Securities shall not have
changed from the date on which such Securities were surrendered for conversion
to the date of such certification and (ii) delivering such form to the Company
no later than the close of business on that date which is fifteen Trading Days
following the date of the mailing of the Company's notice of rescission. The
delivery of such form by a Converting Holder shall be accompanied by (x) any
certificates representing shares of Capital Stock or other securities issued to
such Converting Holder upon a conversion of Securities that shall be rescinded
by the proper delivery of such form (the "Surrendered Securities"), (y) any
securities, evidences of indebtedness or assets (other than cast) distributed by
the Company to such Converting Holder by reason of such Converting Holder being
a record holder of Surrendered Securities and (z) payment in New York Clearing
House funds or other funds acceptable to the Company of an amount equal to the
sum of (I) any cash such Converting Holder may have received in lieu of the
issuance of fractional Surrendered Securities and (II) any cash paid or payable
by the Company to such Converting Holder by reason of such Converting Holder
being a record holder of Surrendered Securities. Upon receipt by the Company of
any such form properly completed by a Converting Holder and any certificates,
securities, evidences of indebtedness, assets or cash payments required to be
returned by such Converting Holder to the Company as set forth above, the
Company shall instruct the transfer agent or agents for shares of Capital Stock
or other securities to cancel any certificates representing Surrendered
Securities (which Surrendered Securities shall be deposited in the treasury of
the Company) and shall instruct the Security Registrar to reissue certificates
representing Securities to such Converting Holder (which Securities shall be
deemed to have been Outstanding at all times during the period following their
surrender for conversion). The Company shall, as promptly as practicable, and
in no event more than five Trading Days following the receipt of any such
properly completed form and any such certificates, securities, evidences of
indebtedness, assets or cash payments required to be so returned, pay to the
Holder of Securities surrendered to the Company pursuant to a rescinded
conversion or as otherwise directed by such Holder any interest paid or other
payment made to Holders of Securities during the period from the time such
Securities shall have been surrendered for conversion to the rescission of such
conversion. All questions as to the validity, form, eligibility (including time
of receipt) and acceptance of any form submitted to the Company to rescind the
conversion of Securities, including questions as to the proper completion or
execution of any such form or any certification contained therein, shall be
resolved by the Company, whose determination shall be final and binding.
Section 1404. NO PAYMENT OR ADJUSTMENT FOR
INTEREST OR DIVIDENDS.
Unless otherwise specified as contemplated in Section 301 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any regular record date (or special record
date for
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payment of defaulted interest) next 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 of an amount equal to the interest
thereon which the Holder is to receive on such Interest Payment Date. Payment
of interest shall be made, as of such Interest Payment Date or such date, as the
case may be, to the Holder of the Securities as of such regular 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 shares of Capital Stock into which such Security is convertible
delivered by the Company to the Holder thereof shall be applied, first, to pay
the accrued original issue discount attributable to the period from the date of
issuance to the date of conversion of such Security, and, second, to pay the
balance of the principal amount of such Security.
Section 1405. ADJUSTMENT OF CONVERSION RATE.
Unless otherwise specified as contemplated in Section 301 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make
a distribution on the class of Capital Stock into which Securities of
such series are convertible in shares of such Capital Stock, (ii)
subdivide the outstanding shares of the class of Capital Stock into
which Securities of such Shares are convertible into a greater number
of shares, (iii) combine the outstanding shares of the class of Capital
Stock into which Securities of such series are convertible into a
smaller number of shares, (iv) issue by reclassification of the shares
of the class of Capital Stock into which securities of such series are
convertible (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation) any shares, the conversion rate for the Securities of such
series in effect at the time of the record date for such dividend or
distribution, or the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that the Holder
of any Security of such series surrendered for conversion after such
time shall be entitled to receive the number and kind of shares which
he would have owned or have been entitled to receive had such Security
been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of the class of Capital
Stock into which
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Securities of such series are convertible entitling them (for a period
expiring within 45 days after such record date) to subscribe for or
purchase shares of such class of Capital Stock (or securities
convertible into shares of such class of Capital Stock) at a price per
share (or, in the case of a right or warrant to purchase securities
convertible into such class of Capital Stock, having a conversion price
per share, after adding thereto the exercise price, computed on the
basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of
such class of Capital Stock, so issuable) less than the current market
price per share of such class of Capital Stock (as defined in
subsection (d) below) on the date on which such issuance was declared
or otherwise announced by the Company (the "Determination Date"), the
number of shares of such class of Capital Stock into which each $1,000
principal amount of Securities shall be convertible after such record
date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities
was convertible immediately prior to such record date by a fraction, of
which the numerator shall be the number of shares of such class of
Capital Stock outstanding on the Determination Date plus the number of
additional shares of such class of Capital Stock offered for
subscription or purchase (or in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, the
aggregate number of additional shares of such class of Capital Stock
into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of
shares of such class of Capital Stock outstanding on the Determination
Date plus the number of shares of such class of Capital Stock obtained
by dividing the aggregate offering price of the total number of shares
so offered (or, in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, the aggregate
initial conversion price of the convertible securities so offered,
after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such
class of Capital Stock issuable upon conversion of such convertible
securities) by such current market price. Shares of such class of
Capital Stock of the Company owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such
a record date is fixed; and to the extent that shares of such class of
Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration
of such rights or warrants (or, in the case of rights or warrants to
purchase securities convertible into such class of Capital Stock once
exercised, the expiration of the conversion right of such securities)
the conversion rate shall be readjusted to the conversion rate which
would then be in effect had the adjustments made upon the issuance of
such rights or warrants (or securities convertible into shares) been
made upon the basis of delivery of only the number of shares actually
delivered. In the event that such rights or warrants are not so
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issued, the conversion rate shall again be adjusted to be the
conversion rate which would be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the class of Capital Stock
into which Securities of such series are convertible (including any
such distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of its
indebtedness or assets (excluding any cash dividends paid from earned
surplus and dividends payable in capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or
warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which securities of such series are
convertible), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities of such series shall
be convertible after such record date shall be determined by
multiplying the number of shares of such class of Capital Stock into
which such principal amount of Securities was convertible immediately
prior to such record date by a fraction, of which the numerator shall
be the fair market value of the assets of the Company, after deducting
therefrom all liabilities of the Company and all preferences (including
accrued but unpaid dividends) in respect of classes of Capital Stock of
the Company having a preference with respect to the assets of the
Company over such class of Capital Stock (all as determined by the
Board of Directors, whose determination shall be conclusive, and
described in an Officers' Certificate, filed with the Trustee and each
conversion agent) on such record date, and of which the denominator
shall be such fair market value after deducting therefrom such
liabilities and preferences, less the fair market value (as determined
by the Board of Directors, whose determination shall be conclusive, and
described in a statement filed with the Trustee and each conversion
agent) of the assets or evidences of indebtedness, so distributed or of
such subscription rights or warrants applicable, so distributed. Such
adjustment shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the
conversion rate shall again be adjusted to the conversion rate which
would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b)
above and Section 1406, the current market price per share of the
Capital Stock on any date as of which such price is to be computed
shall mean the average of the Closing Price Per Share for the 30
consecutive Business Days commencing 45 Business Days before such date.
(e) No adjustment in the conversion rate shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such rate; provided, however, that any adjustments
which by reason of this subsection (e) are not required to be made
shall be carried forward and
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taken into account in any subsequent adjustment; and provided, further,
that adjustments shall be required and made in accordance with the
provisions of this Article Fourteen (other than this subsection (e))
not later than such time as may be required in order to preserve the
tax free nature of a distribution for United States income tax purposes
to the Holders of Securities of the class of Capital Stock into which
such Securities are convertible. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be. Anything in this
Section 1405 to the contrary notwithstanding, the Company shall be
entitled to make such adjustments in the conversion rate, in addition
to those required by this Section 1405, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision
of shares, distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its shareholders shall not be taxable
for United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein
provided, the Company shall promptly file with the Trustees and with
the office or agency maintained by the Company for the conversion of
Securities of such series pursuant to Section 1002, a certificate of a
firm of independent public accountants of recognized national standing
selected by the Board of Directors (who may be the regular accountants
employed by the Company) setting forth the conversion rate after such
adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. Such 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 Securities of such series desiring to
inspect the same. The Company shall promptly cause a notice setting
forth the adjusted conversion rate to be mailed to the Holders of
Securities of such series, as their names and addresses appear upon the
registration books of the Company.
(g) In the event that at any time, as a result of shares
of any other class of Capital Stock of the Company becoming issuable
in exchange or substitution for or in lieu of shares of the class of
Capital Stock into which such Securities are convertible or as a
result of an adjustment made pursuant to subsection (a) above, the
Holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company
other than shares of the class of Capital Stock into which the
Securities of such series are convertible, thereafter the number of
such other shares so receivable upon conversion of any Security shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
class of Capital Stock into which the Securities of such series are
convertible contained in subsections
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(a) to (k), inclusive, above, and the provisions of this Article
Fourteen with respect to the class of Capital Stock into which the
Securities of such series are convertible shall apply on like terms to
any such other shares.
(h) In any case in which this Section 1405 shall require
that any adjustment be made effective as of or retroactively
immediately following a record date, the Company may elect to defer
(but only for five (5) Trading Days following the filing of the
statement referred to in Section 1408) issuing to the Holder of any
Securities converted after such record date the shares of Capital Stock
issuable upon such conversion over and above the shares of Capital
Stock of the Company issuable upon such conversion on the basis of the
conversion price prior to adjustment; provided, however, that the
Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(i) The conversion rate with respect to any Original
Issue Discount Securities, the terms of which provide for
convertibility, shall not be adjusted during the term of such Original
Issue Discount Securities for accrued original issue discount.
(j) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions
of this Section 1405 shall apply separately to events affecting each
such class.
(k) No adjustment shall be made pursuant to this Section
1405 (i) if the effect thereof would be to reduce the conversion price
below the par value (if any) of the Capital Stock or (ii) subject to
1403(h) hereof, with respect to any Security that is converted prior to
the time such adjustment otherwise would be made.
Section 1406. NO FRACTIONAL SHARES TO BE ISSUED.
No fractional shares of Capital Stock shall be issued upon
conversions 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 Capital Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction
of a share in an amount equal to the same fractional interest of the Closing
Price Per Share of Capital Stock on the Business Day next preceding the day of
conversion.
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Section 1407. 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 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, subject to 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 Capital Stock
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 shares of Capital Stock 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 and shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
Fourteen. Neither the Trustee nor any conversion agent shall be under any
responsibility to determine 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 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 601, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect 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 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 1407 shall
similarly apply to successive consolidations, mergers, sales or transfers.
Section 1408. NOTICE TO HOLDERS OF 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 the class of Capital Stock into which Securities of such
series are convertible of rights or warrants to subscribe for or
purchase shares of its Capital Stock or any other right;
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(b) the Company shall authorize the distribution to all
holders of the class of Capital Stock into which Securities of such
series are convertible of evidences of its indebtedness or assets
(except for the exclusions with respect to certain dividends set forth
in Section 1405(c));
(c) of any subdivision, combination or reclassification
of the class of Capital Stock into which Securities of such series are
convertible 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 1002, and shall cause to be mailed to the Holders of
Securities of such series, at their last addresses as they shall appear upon the
registration books 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 such class of Capital Stock 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, reclassification, 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 such class of Capital Stock shall be entitled to exchange their
Capital Stock of such class for securities or other property, if any,
deliverable upon such subdivision, combination, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation, winding up or other action.
The failure to give the notice required by this Section 1408 or any defect
therein shall not affect the legality or validity of any distribution, right,
warrant, subdivision, combination, reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action, or the
vote upon any of the foregoing. Such notice shall also be published by and at
the expense of the Company not later than the aforesaid filing date at least
once in an Authorized Newspaper.
Section 1409. 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 Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of
Securities of any series as herein provided, such number of shares of Capital
Stock of such class as shall then be issuable upon the conversion of all
outstanding Securities of such series. The Company covenants that all shares
of Capital Stock which shall be so issuable shall, when issued or delivered, be
duly and validly issued shares of the class of authorized Capital Stock into
which Securities of such series are convertible, and
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<PAGE> 101
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 1410. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
The Company covenants that if any shares of Capital Stock
required to be reserved for purposes of conversion of Securities hereunder
require 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, or any national or regional securities
exchange on which such Capital Stock is listed at the time of delivery of any
shares of such Capital Stock, 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 1411. PAYMENT OF TAXES UPON CERTIFICATES FOR
SHARES ISSUED UPON CONVERSION OF SECURITIES.
The issuance of certificates for shares of Capital Stock 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 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 certificates 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 1412. TRUSTEE'S DUTIES WITH RESPECT
TO CONVERSION PROVISIONS.
The Trustee and any conversion agent shall not at any time be
under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the conversion
rate, 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 shares of Capital Stock, 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 or liable 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
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<PAGE> 102
other securities or property upon the surrender of any Security for the purpose
of conversion; and the Trustee, subject to the provisions of Section 601, and
any conversion agent shall not be responsible or liable for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article Fourteen.
Section 1413. CORPORATE ACTION REGARDING
PAR VALUE OF CAPITAL STOCK.
Before taking any action which would cause an adjustment
reducing the applicable conversion price below the then par value (if any) of
the shares of Capital Stock deliverable upon conversion of the Securities, the
Company will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of Capital Stock at such adjusted
conversion price.
Section 1414. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors
must make pursuant to this Article is conclusive.
ARTICLE FIFTEEN
Subordination
Section 1501. APPLICABILITY OF ARTICLE.
Securities of any series which are subordinated shall be
subordinated in accordance with their terms (unless otherwise specified in one
or more indentures supplemental hereto or in a resolution of the Board of
Directors as contemplated in Section 301 for the Securities of any series) in
accordance with this Article.
Section 1502. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each Holder of a
subordinated Security or any Coupon appertaining thereto issued hereunder, by
his acceptance thereof, likewise covenants and agrees, that all subordinated
Securities and any Coupons appertaining thereto shall be issued subject to the
provisions of, any applicable indentures supplemental hereto and/or Board
Resolution as contemplated in Section 301 with respect to subordination of the
rights of subordinated Debt to Senior Debt.
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<PAGE> 103
Section 1503. SUBROGATION.
Subject to the payment in full of all Senior Debt, the Holders
of the subordinated Securities and any Coupon appertaining thereto shall be
subrogated (equally and ratably with the holders of all obligations of the
Company which by their express terms are subordinated to Senior Debt of the
Company) to the rights of the holders of Senior Debt hereunder until the
principal of and interest on such subordinated Securities and the amounts owed
pursuant to any such Coupons appertaining thereto shall be paid in full; and
otherwise as provided in an applicable supplemental indenture and/or resolution
of the Board of Directors as contemplated in Section 301.
Nothing contained in this Article or elsewhere in this
Indenture or in the subordinated Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior Debt, and
the Holders of the subordinated Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the subordinated
Securities the principal of and interest on the subordinated Securities and the
amounts owed pursuant to any Coupons appertaining thereto as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights against the Company of the Holders of the
subordinated Securities and creditors of the Company other than the holders of
Senior Debt, nor shall anything herein or therein prevent the Holder of any
subordinated Security or the Trustee on his behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Sections
601 and 603, and the Holders of the subordinated Securities and any Coupons
appertaining thereto shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such insolvency, bankruptcy,
dissolution, winding-up, liquidation, arrangement or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the subordinated Securities and
of any Coupons appertaining thereto, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 1504. AUTHORIZATION BY HOLDERS OF SUBORDINATED SECURITIES.
Each Holder of a subordinated Security or Coupon appertaining
thereto by his acceptance thereof authorizes the Trustee on his behalf to take
such
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<PAGE> 104
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
Section 1505. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee and
to any Paying Agent of any fact known to the Company which would prohibit the
making of any payment of moneys to or by the Trustee or any paying agent in
respect of the subordinated Securities or any Coupons appertaining thereto
pursuant to the provisions of this Article. Regardless of anything to the
contrary contained in this Article or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any Senior Debt or of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment of moneys to or by the
Trustee in respect of the subordinated Securities or any Coupons appertaining
thereto, unless and until the Trustee shall have received notice in writing at
its Corporate Trust Office to that effect signed by an officer of the Company,
or by a holder or agent of a holder of Senior Debt who shall have been certified
by the Company or otherwise established to the reasonable satisfaction of the
Trustee to be such holder or agent, or by the trustee under any indenture
pursuant to which Senior Debt shall be outstanding, and, prior to the receipt of
any such written notice, the Trustee shall, subject to Sections 601 and 603, be
entitled to assume that no such facts exist; provided that if on a date at least
two Business Days prior to the date upon which by the terms hereof any such
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security) the Trustee shall not
have received with respect to such moneys the notice provided for in this
section, then, regardless of anything herein to the contrary, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
Regardless of anything to the contrary herein nothing shall
prevent (a) any payment by the Company or the Trustee to the Holders of
subordinated Securities of amounts in connection with a redemption of
subordinated Securities if (i) notice of such redemption has been given
pursuant to Article Eleven prior to the receipt by the Trustee of written
notice as aforesaid, and (ii) such notice of redemption is given not earlier
than 60 days before the redemption date, or (b) any payment by the Trustee to
the Holders of subordinated Securities of amounts deposited with it pursuant to
Section 1302.
Subject to Sections 601 and 603, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee or other representative on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Debt or a trustee or other representative on behalf of any such
holder. In the event that the Trustee
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<PAGE> 105
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 1506. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
the Trust Indenture Act or in this Indenture shall deprive the Trustee or any
such agent of any of its rights as such holder. Nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
607.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of
Sections 601 and 603, the Trustee shall not be liable to any holder of Senior
Debt if it shall in good faith pay over or deliver to Holders of subordinated
Securities, the Company or any other Person moneys or assets to which any holder
of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 1507. NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.
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<PAGE> 106
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
FOSTER WHEELER CORPORATION
By
----------------------------
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By
----------------------------
Name:
Title:
[SEAL]
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<PAGE> 107
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1995, before me personally
came , to me known, who, being by me duly sworn, did
depose and say that he/she is of
FOSTER WHEELER CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he/she signed his/her name thereto by like authority.
[NOTARIAL SEAL]
-------------
Notary Public
<PAGE> 108
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this day of , 1995, before me personally
came , to me known, who, being by me duly sworn, did depose and say that he/she
is of HARRIS TRUST AND SAVINGS BANK, one of the corporations described in and
which executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he/she signed his/her name thereto by like authority.
[NOTARIAL SEAL]
-------------
Notary Public
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn C. Potter; Harris Trust and Savings Bank;
311 West Monroe Street; Chicago, Illinois, 60606
312/461-2253
(Name, address and telephone number for agent for service)
FOSTER WHEELER CORPORATION
(Name of obligor)
New York
(State of Incorporation)
13-1855904
(I.R.S. Employer Identification Number)
Perryville Corporate Park
Clinton, New Jersey 08809
(Address of principal executive offices)
Debt Securities
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as
now in effect and includes the authority of the Trustee to
commence business and to exercise corporate trust powers was
filed in connection with the Registration Statement of Louisville
Gas and Electric Company, File No. 2-44295, and is incorporated
herein by reference.
2. A copy of the existing by-laws of the Trustee.
(included as Exhibit C to this statement)
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 20th day of October, 1995.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
----------------------------
Carolyn C. Potter
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
----------------------------
Carolyn C. Potter
Assistant Vice President
2
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1995, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO HARRIS BANK]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1995, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve
System. Published in accordance with a call made by the Commissioner of Banks
and Trust Companies of the State of Illinois and by the Federal Reserve Bank of
this District.
<TABLE>
<CAPTION>
Bank's Transit Number 71000288
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin........................ $ 975,130
Interest bearing balances.................................................. $ 619,550
Securities:
a. Held-to-maturity securities..................................................... $ 654,606
b. Available-for-sale securities................................................... $ 1,597,462
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBF's:
Federal funds sold......................................................... $ 272,684
Securities purchased under agreements to resell............................ $ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income................................... $7,184,420
LESS: Allowance for loan and lease losses................................. $ 91,061
----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b)....................................................... $ 7,093,359
Assets held in trading accounts..................................................... $ 335,699
Premises and fixed assets (including capitalized leases)............................ $ 139,368
Other real estate owned............................................................. $ 1,018
Investments in unconsolidated subsidiaries and associated companies................. $ 195
Customer's liability to this bank on acceptances outstanding........................ $ 120,891
Intangible assets................................................................... $ 21,763
Other assets........................................................................ $ 246,739
-----------
TOTAL ASSETS $12,078,464
===========
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices.................................................................. $ 4,184,673
Non-interest bearing............................................................. $2,391,354
Interest bearing................................................................. $1,793,319
In foreign offices, Edge and Agreement subsidiaries, and IBF's....................... $ 2,559,227
Non-interest bearing............................................................. $33,115
Interest bearing................................................................. $2,526,112
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased.............................................................. $ 1,361,248
Securities sold under agreements to repurchase....................................... $ 1,496,277
.......................................................................................... $ 264,633
Trading Liabilities
Other borrowed money:
.......................................................................................... $ 883,157
a. With original maturity of one year or less............................................ $ 13,390
b. With original maturity of more than one year
Bank's liability on acceptances executed and outstanding.................................. $ 120,891
Subordinated notes and debentures......................................................... $ 235,000
Other liabilities......................................................................... $ 178,632
===========
TOTAL LIABILITIES $11,297,128
===========
EQUITY CAPITAL
Common stock.............................................................................. $ 100,000
Surplus................................................................................... $ 275,000
a. Undivided profits and capital reserves................................................ $ 409,797
b. Net unrealized holding gains (losses) on available-for-sale securities................ ($3,461)
-----------
TOTAL EQUITY CAPITAL $ 781,336
===========
Total liabilities, limited-life preferred stock, and equity capital....................... $12,078,464
===========
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
7/28/95
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and, to the best
of our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
the Commissioner of Banks and Trust Companies of the State of Illinois and is
true and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J. GLASSER,
Directors.
4
