<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 5, 1995
REGISTRATION NOS. 33- AND 33- -01
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
<TABLE>
<S> <C>
BFGOODRICH CAPITAL THE B.F.GOODRICH COMPANY
(Exact name of registrant as specified in its (Exact name of registrant as specified in its
charter) charter)
DELAWARE NEW YORK
(State of incorporation or organization) (State of incorporation)
34-7031378 34-0252680
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
</TABLE>
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3925 EMBASSY PARKWAY
AKRON, OHIO 44333-1799
(216) 374-3985
(Address, including zip code, and telephone number,
including area code, of Registrants' principal executive offices)
------------------
NICHOLAS J. CALISE, SECRETARY
THE B.F.GOODRICH COMPANY
3925 EMBASSY PARKWAY
AKRON, OHIO 44333-1799
(216) 374-3778
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
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COPIES TO:
<TABLE>
<S> <C>
FRANK L. SCHIFF ROBERT H. CRAFT, JR.
White & Case Sullivan & Cromwell
1155 Avenue of the Americas 1701 Pennsylvania Avenue, N.W.
New York, New York 10036 Washington, D.C. 20006
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS POSSIBLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1), (2) FEE
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
BFGoodrich Capital % Cumulative Quarterly Income
Preferred Securities, Series A.................... 5,060,000 $25.00 $126,500,000 $43,621
Preferred
Securities
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The B.F.Goodrich Company Guarantee with respect to
BFGoodrich Capital % Cumulative Quarterly Income
Preferred Securities, Series A(3).................
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The B.F.Goodrich Company % Junior Subordinated
Debentures, Series A, Due 2025(4).................
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Total........................................... 5,060,000
Preferred $25.00 $126,500,000 $43,621
Securities
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
(2) Exclusive of accrued distributions, if any.
(3) No separate consideration will be received for The B.F.Goodrich Company
Guarantee.
(4) The Junior Subordinated Debentures will be purchased by BFGoodrich Capital
with the proceeds of the sale of the Preferred Securities. No separate
consideration will be received for the Junior Subordinated Debentures.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such state.
SUBJECT TO COMPLETION, DATED JUNE 5, 1995
4,400,000 PREFERRED SECURITIES
BFGOODRICH CAPITAL
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A ("QUIPS"*)
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT THE ISSUER HAS FUNDS AS SET FORTH HEREIN BY
THE B.F.GOODRICH COMPANY
------------------
The % Cumulative Quarterly Income Preferred Securities, Series A (the
"Preferred Securities"), representing the trust certificates offered hereby, are
being issued by BFGoodrich Capital, a trust formed under the laws of the State
of Delaware (the "Issuer" or the "Trust"). The B.F.Goodrich Company, a New York
corporation ("BFG"), is the owner of the trust interests represented by common
securities (the "Common Securities") issued by the Issuer. The Bank of New York
and The Bank of New York (Delaware) are the Trustee and the Delaware Trustee,
respectively, of the Issuer. The Issuer exists for the sole purpose of issuing
its trust interests and investing the proceeds thereof in % Junior
Subordinated Debentures, Series A, Due 2025 (the "Junior Subordinated
Debentures") issued by BFG. The preferred interests represented by the Preferred
Securities will have a preference under certain circumstances with respect to
cash distributions and amounts payable on liquidation, redemption or otherwise
over the trust interests represented by the Common Securities issued by the
Issuer. See "Description of the Preferred Securities -- Subordination of Common
Securities".
Holders of the Preferred Securities will be entitled to receive cumulative
cash distributions accruing from the date of original issuance and payable
quarterly in arrears on the last day of March, June, September and December of
each year, commencing , 1995, at the rate of % per annum. BFG has
the right to defer payments of interest on the Junior Subordinated Debentures by
extending the interest payment period thereon at any time for up to 20
consecutive quarters (each an "Extension Period"). If interest payments are so
deferred, distributions on the Preferred Securities will also be deferred.
During an Extension Period, distributions will continue to accrue, and holders
of Preferred Securities will be required to accrue interest income for United
States Federal income tax purposes. See "Description of the Junior Subordinated
Debentures -- Option to Extend Interest Payment Period" and "United States
Taxation -- Potential Extension of Interest Payment Period and Original Issue
Discount".
The payment of distributions, out of moneys held by the Issuer, and payments
on liquidation of the Issuer or the redemption of Preferred Securities, as set
forth below, are guaranteed to the extent set forth herein by BFG (the
"Guarantee"). See "Description of the Guarantee". If BFG fails to make interest
payments on the Junior Subordinated Debentures held by the Issuer, the Issuer
will have insufficient funds to pay distributions on the Preferred Securities.
The Guarantee does not cover payment of distributions when the Issuer does not
have sufficient funds to pay such distributions. In such event, the remedy of a
holder of Preferred Securities is to enforce the rights of the Issuer under the
Junior Subordinated Debentures held by the Issuer. BFG's obligations under the
Guarantee are subordinate and junior in right of payment to all other
liabilities of BFG except any liabilities that may be made pari passu expressly
by their terms.
The Preferred Securities are subject to mandatory redemption upon repayment
of the Junior Subordinated Debentures at maturity or their earlier redemption.
See "Description of Preferred Securities -- Redemption". BFG will have the
option at any time on or after , 2000 to redeem, in whole or in part,
the Junior Subordinated Debentures. BFG also will have the right at any time,
upon occurrence of a Tax Event (as defined herein), to redeem, in whole but not
in part, the Junior Subordinated Debentures. In either such case, the principal
amount of Junior Subordinated Debentures so redeemed may not exceed 103% of the
amount of proceeds derived by BFG or its subsidiaries from the issuance and sale
of Common Stock of BFG within two years preceding the date fixed for redemption.
See "Description of Junior Subordinated Debentures -- Optional Redemption".
The Junior Subordinated Debentures are subordinated and junior in right of
payment to all Senior Indebtedness (as defined herein) of BFG. As of April 30,
1995, BFG had approximately $609.5 million of principal amount of indebtedness
for borrowed money and capital lease obligations constituting Senior
Indebtedness. The terms of the Junior Subordinated Debentures do not limit BFG's
ability to incur additional Senior Indebtedness. See "Description of the Junior
Subordinated Debentures -- Subordination".
In the event of the liquidation of the Issuer, the holders of the Preferred
Securities will be entitled to receive for each Preferred Security a liquidation
preference of $25 plus accrued and unpaid distributions thereon to the date of
payment, subject to certain limitations. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution".
Application will be made to list the Preferred Securities on the New York
Stock Exchange.
The Preferred Securities will be represented by global certificates
registered in the name of The Depository Trust Company ("DTC") or its nominee.
Beneficial interests in the Preferred Securities will be shown on, and transfers
thereof will be effected only through, records maintained by participants in
DTC. Except as described herein, Preferred Securities in certificated form will
not be issued in exchange for the global certificates. See "Description of
Preferred Securities -- Book-Entry-Only Issuance -- The Depository Trust
Company".
------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO THE
OFFERING PRICE COMMISSION(1) ISSUER(2),(3)
--------------- -------------------- -----------------
<S> <C> <C> <C>
Per Preferred Security....................... $25.00 (2) $25.00
Total(4)..................................... $110,000,000 (2) $110,000,000
</TABLE>
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(1) The Issuer and BFG have agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933,
as amended. See "Underwriting".
(2) In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Junior Subordinated Debentures, the
Underwriting Agreement provides that BFG will pay to the Underwriters, as
compensation ("Underwriters' Compensation") for their arranging the
investment therein of such proceeds, $.7875 per Preferred Security (or
$3,465,000 in the aggregate). See "Underwriting".
(3) Expenses of the offering, which are payable by BFG, are estimated to be
$450,000.
(4) The Trust and BFG have granted the Underwriters an option for 30 days to
purchase up to an additional 660,000 Preferred Securities at the initial
public offering price per Preferred Security, solely to cover
over-allotments. BFG will pay Underwriters' Compensation in the amounts per
Preferred Security set forth in Note 2 with respect to such additional
Preferred Securities. If such option is exercised in full, the total Initial
Public Offering Price, Underwriting Commission and Proceeds to the Issuer
will be $126,500,000, $3,984,750 and $126,500,000, respectively. See
"Underwriting".
----------------------
The Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, and subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Preferred Securities will be made only in
book-entry form through the facilities of DTC on or about , 1995.
- ---------------
*QUIPS is a servicemark of Goldman, Sachs & Co.
GOLDMAN, SACHS & CO.
------------------
The date of this Prospectus is , 1995.
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
---------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
---------------
AVAILABLE INFORMATION
BFG is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by BFG may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices located at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade
Center, New York, New York 10048. Copies of such materials can be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition, such material
may also be inspected and copied at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, on which certain of BFG's
securities are listed.
BFG and the Issuer have filed with the Commission a registration statement
on Form S-3 (herein, together with all amendments and exhibits, referred to as
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement.
No separate financial statements of the Issuer are included herein. BFG
considers that such financial statements would not be material to holders of the
Preferred Securities because (i) all of the common securities of the Issuer are
owned by BFG, a reporting company under the Exchange Act; (ii) the Issuer has no
independent operations, but exists for the sole purpose of issuing securities
representing undivided beneficial interests in the assets of the Issuer and
investing the proceeds thereof in the Junior Subordinated Debentures; and (iii)
the obligations of the Issuer under the securities issued thereby, to the extent
funds are available therefor, are fully and unconditionally guaranteed to the
extent set forth herein by BFG.
---------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by BFG with the Commission (File No. 1-892)
pursuant to the Exchange Act are incorporated herein by reference:
1. BFG's Annual Report on Form 10-K for the year ended December 31,
1994; and
2. BFG's Quarterly Report on Form 10-Q for the quarter ended March 31,
1995.
All other documents filed by BFG pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the respective dates of the
filing of such documents. Any statement contained herein or in a document all or
a portion of which is incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or
2
<PAGE> 4
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
BFG will provide without charge to each person, including a beneficial
owner, to whom a copy of this Prospectus has been delivered, upon the written or
oral request of any such person, a copy of any and all of the documents which
are incorporated herein by reference, other than exhibits to such information
(unless such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to The B.F.Goodrich
Company, 3925 Embassy Parkway, Akron, Ohio 44333-1799, Attention: Secretary,
telephone: (216) 374-3985.
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters:
SUBORDINATION OF GUARANTEE AND JUNIOR SUBORDINATED DEBENTURES. BFG's
obligations under the Guarantee are subordinate and junior in right of payment
to all other liabilities of BFG, except any liabilities that may be made pari
passu expressly by their terms. The obligations of BFG under the Junior
Subordinated Debentures are subordinate and junior in right of payment to Senior
Indebtedness (as defined herein) of BFG. As of April 30, 1995, BFG had
approximately $609.5 million of principal amount of indebtedness for borrowed
money and capital lease obligations constituting Senior Indebtedness on a
consolidated basis. In addition, as of April 30, 1995, there were approximately
$70 million of contingent obligations constituting Senior Indebtedness where
there exists a financially viable and unrelated primary obligor and where the
risk of loss to BFG is, in the opinion of BFG, remote. There are no terms of the
Preferred Securities, the Junior Subordinated Debentures or the Guarantee that
limit BFG's ability to incur additional indebtedness, including indebtedness
that would rank senior to the Junior Subordinated Debentures and the Guarantee.
See "Description of the Guarantee -- Status of the Guarantee" and "Description
of the Junior Subordinated Debentures -- Subordination".
The ability of the Issuer to pay amounts due on the Preferred Securities is
solely dependent upon BFG making payments on the Junior Subordinated Debentures
as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES. BFG has the
right under the Indenture to extend the interest payment period from time to
time on the Junior Subordinated Debentures for a period not exceeding 20
consecutive quarters. Upon the termination of any such extended interest payment
period and the payment of all amounts then due, BFG may select a new extended
interest payment period, subject to the requirements described herein. During
any such extended interest payment period, quarterly distributions on the
Preferred Securities would be deferred (but would continue to accrue with
interest thereon) by the Issuer. In the event that BFG exercises this right,
during such period BFG may not declare or pay dividends or distributions (other
than dividends or distributions in common stock of BFG) on, or redeem, purchase,
acquire, or make a liquidation payment with respect to any of its capital stock,
or make any guarantee payment with respect to the foregoing (other than payments
under the Guarantee). Prior to the termination of any such extended interest
payment period, BFG may further extend the interest payment period, provided
that such extended interest payment period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters and that such
extended interest payment period may not extend beyond the maturity date of the
Junior Subordinated Debentures. If BFG should determine to exercise its
extension right in the future, the market price of the Preferred Securities is
likely to be affected. The Issuer and BFG believe that such an extension of an
interest payment period on the Junior Subordinated Debentures is unlikely to
occur. See "Description of the Preferred Securities -- Distributions" and
"Description of the Junior Subordinated Debentures -- Option to Extend Interest
Payment Period".
Should an extended interest payment period occur, Preferred Security
holders will continue to accrue interest income for United States Federal income
tax purposes. As a result, such a holder will be required
3
<PAGE> 5
to include such interest in gross income for United States Federal income tax
purposes in advance of the receipt of cash, and such holder will not receive the
cash from the Issuer related to such income if such holder disposes of its
Preferred Securities prior to the record date for payment of distributions. See
"United States Taxation -- Potential Extension of Interest Payment Period and
Original Issue Discount".
RIGHTS UNDER THE GUARANTEE. The Guarantee will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
The Bank of New York will act as indenture trustee under the Guarantee for the
purposes of compliance with the Trust Indenture Act (the "Guarantee Trustee").
The Guarantee Trustee will also be the trustee for the Junior Subordinated
Debentures and will hold the Guarantee for the benefit of the holders of the
Preferred Securities.
The Guarantee guarantees to the holders of the Preferred Securities the
payment (but not the collection) of (i) any accrued and unpaid distributions
required to be paid on the Preferred Securities, to the extent the Issuer has
funds legally available therefor, (ii) the Redemption Price (as defined herein),
including all accrued and unpaid distributions, with respect to Preferred
Securities called for redemption by the Issuer, to the extent the Issuer has
funds legally available therefor and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with a redemption of all of the Preferred Securities), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions on
the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor and (b) the amount of assets of the Issuer
remaining available for distribution to holders of the Preferred Securities in
liquidation of the Issuer. The holders of a majority in liquidation amount of
the Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee. If the Guarantee Trustee fails to enforce the
Guarantee, any holder of Preferred Securities may, after a period of 30 days has
elapsed from such holder's written request to the Guarantee Trustee to enforce
the Guarantee, institute a legal proceeding directly against BFG to enforce the
Guarantee Trustee's rights under the Guarantee without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other person or
entity. If BFG were to default on its obligations under the Junior Subordinated
Debentures, the Issuer would lack available funds for the payment of
distributions or amounts payable on redemption of the Preferred Securities or
otherwise, and in such event holders of the Preferred Securities would not be
able to rely upon the Guarantee for payment of such amounts. Instead, holders of
the Preferred Securities would be required to rely on the enforcement by the
Trustee of its rights, as registered holder of the Junior Subordinated
Debentures, against BFG pursuant to the terms of the Junior Subordinated
Debentures. See "Description of the Guarantee -- Status of the Guarantee" and
"Description of the Junior Subordinated Debentures -- Subordination" herein. The
Trust Agreement provides that each holder of Preferred Securities by acceptance
thereof agrees to the provisions of the Guarantee and the Indenture.
TAX EVENT REDEMPTION. Upon the occurrence of a Tax Event, BFG has the right
to redeem the Junior Subordinated Debentures, in whole but not in part, in which
event the Issuer will redeem the Preferred Securities. The stated liquidation
preference of the Preferred Securities redeemed upon such redemption of Junior
Subordinated Debentures may not exceed the amount derived, directly or
indirectly, by BFG or its subsidiaries from the issuance and sale of BFG's
common stock within two years preceding the date fixed for such redemption. See
"Description of the Preferred Securities -- Redemption" and "United States
Taxation."
LIMITED VOTING RIGHTS. Holders of Preferred Securities will have limited
voting rights and, except upon the occurrence of certain events described
herein, will not be entitled to vote to appoint, remove or replace the Trustee,
which voting rights are vested exclusively in the holder of the Common
Securities.
TRADING CHARACTERISTICS OF PREFERRED SECURITIES. The Preferred Securities
are expected to be approved for listing as an equity security on the New York
Stock Exchange. Accordingly, the Preferred Securities are expected to trade at a
price that takes into account the value, if any, of accrued and unpaid
distributions; thus, purchasers will not pay and sellers will not receive any
accrued and unpaid interest with respect to their undivided interests in Junior
Subordinated Debentures owned through the Preferred
4
<PAGE> 6
Securities that is not included in the trading price of the Preferred
Securities. However, interest on the Junior Subordinated Debentures will be
included in the gross income of U.S. Holders (as defined herein) of Preferred
Securities as it accrues, rather than when it is paid. See "United States
Taxation -- Income from Preferred Securities" and "-- Sale of Preferred
Securities".
BFGOODRICH CAPITAL
BFGoodrich Capital (the "Issuer") is a statutory business trust formed
under Delaware law pursuant to (i) a trust agreement executed by BFG, as sponsor
for the Issuer, and the Trustee and the Delaware Trustee (each as defined
herein) of such trust and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on June 1, 1995. Such trust agreement will be
amended and restated in its entirety (as so amended and restated, the "Trust
Agreement") substantially in the form filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The Trust Agreement will be
qualified as an indenture under the Trust Indenture Act. The Issuer exists for
the exclusive purposes of (i) issuing the Preferred Securities and Common
Securities representing undivided beneficial interests in the assets of such
Issuer, (ii) investing the gross proceeds of the sale of the Preferred
Securities and Common Securities in the Junior Subordinated Debentures and (iii)
engaging in only those other activities necessary or incidental thereto. All of
the Common Securities will be owned by BFG. The Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and continuance of an event of
default under the Trust Agreement, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. BFG will acquire Common Securities having an aggregate
liquidation amount equal to 3% of the total capital of the Issuer. The Issuer
has a term of approximately 35 years, but may terminate earlier as provided in
the Trust Agreement. The Issuer's business and affairs will be conducted by the
Trustee. The holder of the Common Securities, or the holders of a majority in
liquidation preference of the Preferred Securities if an Event of Default (as
defined herein) has occurred and is continuing, will be entitled to appoint,
remove or replace the Trustee and the Delaware Trustee of the Issuer. The duties
and obligations of the Trustee and the Delaware Trustee shall be governed by the
Trust Agreement. BFG will pay all fees and expenses related to the Issuer and
the offering of Securities. The office of the Delaware Trustee in the State of
Delaware is White Clay Center, Route 273, Newark, Delaware 19711. The principal
place of business of the Issuer is c/o The B.F.Goodrich Company, 3925 Embassy
Parkway, Akron, Ohio 44333 (telephone number (216) 374-3985).
THE B.F.GOODRICH COMPANY
BFG manufactures and supplies a wide variety of supplies and component
parts for the aerospace industry and provides maintenance, repair and overhaul
services on commercial, regional and general aviation aircraft. BFG also
manufactures specialty plastics, specialty additives, sealants, coatings and
adhesives products for a variety of end user applications. In addition, BFG
produces chlor-alkali and olefins.
BFG, with 1994 sales of $2.2 billion, is organized into two principal
business segments: B.F.Goodrich Aerospace ("Aerospace") and B.F.Goodrich
Specialty Chemicals ("Specialty Chemicals").
BFG's Aerospace business is conducted through four major business groups:
- Landing Systems Group manufactures landing gear and aircraft wheels and
brakes for commercial, military, regional and business aviation
customers.
- Sensors and Integrated Systems Group manufactures sensors and related
equipment; fuel and integrated utility measurement and management
systems; engine ignition system components; electromechanical actuators;
and aircraft windshield wiper systems for commercial, military, regional
and business aviation customers.
5
<PAGE> 7
- Safety Systems Group manufactures aircraft evacuation slides and rafts;
aircraft and helicopter de-icing systems; navigation, traffic alert and
collision avoidance systems; weather detection systems; and airport and
aircraft lighting components for commercial, military, regional, business
and general aviation customers.
- Maintenance, Repair and Overhaul Group provides maintenance, repair and
overhaul of commercial airframes and components including landing gear,
wheels and brakes, and instruments and avionics for commercial, regional,
business and general aviation customers.
BFG's Specialty Chemicals business is conducted through three major
business groups:
- Specialty Plastics Group manufactures thermoplastic polyurethane;
high-heat, corrosion-resistant and low-combustibility plastics; and
thermoset resins for reaction liquid polymer molded parts. Products are
marketed and sold to manufacturers for film and sheet applications;
fabric coatings; wire and cable coating and magnetic media. Specialty
plastics are also used in automotive products; recreational vehicles and
products; lawn and garden equipment; plumbing and industrial pipe; fire
sprinkler systems and building material components.
- Specialty Additives Group manufactures synthetic thickeners and
emulsifiers; controlled release and suspension agents; polymer emulsions;
dissolvable films; rubber and lubricant additives and plastic and
adhesive modifiers. These products are used by manufacturers of personal
care products; pharmaceuticals; liquid soaps and detergents; water
treatment products; electronics; tires and petroleum products and molded
plastics. Specialty additives are also used in textile printing
manufacturing; nonwoven manufacturing; paper coating and saturation;
graphic arts; and paints and industrial coatings.
- Sealants, Coatings and Adhesives Group manufactures insulating glass
sealants; construction sealants and water proofing coatings; commercial
glazing products and roofing products. This Group also manufactures
automotive sealants; adhesives and paint products; structural adhesives;
laminating adhesives and rust paints and primers. Products are sold to
manufacturers of windows; the construction and building maintenance
industry; and automotive and aircraft assembly industries. Other products
are sold in the automotive repair and residential maintenance markets.
BFG's Other Operations consist of the chlor-alkali and olefins businesses
which participate in a highly cyclical chlorine, caustic soda, ethylene and
olefin co-product commodity market. Sales and operating results are largely
dependent on industry supply and demand. BFG believes it does not have a
significant market share and, as a result, products produced by this business
are sold at established market prices.
BFG maintains patent and technical assistance agreements, licenses and
trademarks on its products, process technologies and expertise in most of the
countries in which it operates. BFG conducts its business through numerous
business groups of BFG and wholly- and majority-owned subsidiaries worldwide.
6
<PAGE> 8
The net sales and operating income for BFG for the periods shown were as
follows:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
----------------- ----------------------------------
1995 1994 1994 1993 1992
------ ------ -------- -------- --------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C>
NET SALES:
Aerospace...................... $276.6 $255.8 $1,050.3 $ 855.4 $ 750.0
Specialty Chemicals............ 261.5 209.7 988.6 829.6 825.1
Other Operations............... 55.9 36.9 160.3 133.3 72.8
------ ------ -------- -------- --------
Total.......................... $594.0 $502.4 $2,199.2 $1,818.3 $1,647.9
====== ====== ======== ======== ========
OPERATING INCOME:
Aerospace...................... $ 27.8 $ 28.7 $ 121.9 $ 91.3 $ 83.2
Specialty Chemicals............ 12.0 10.1 86.7 45.0 40.9
Other Operations............... 19.4 (1.2) 24.1 4.0 14.5
Corporate...................... (11.7) (11.4) (53.0) (57.6) (63.6)
------ ------ -------- -------- --------
Total.......................... $ 47.5 $ 26.2 $ 179.7 $ 82.7 $ 75.0
====== ====== ======== ======== ========
</TABLE>
The principal executive offices of BFG are located in Bath Township, Summit
County, Ohio with a mailing address at 3925 Embassy Parkway, Akron, Ohio
44333-1799 (telephone (216) 374-3985).
The Company was incorporated under the laws of the State of New York on May
2, 1912 as the successor to a business founded in 1870.
7
<PAGE> 9
SUMMARY FINANCIAL INFORMATION OF BFG
The selected financial data presented below under the captions "Statement
of Income Data" and "Balance Sheet Data" have been derived from the consolidated
financial statements of BFG for each of the years in the five-year period ended
December 31, 1994, which have been audited by Ernst & Young LLP, independent
auditors. The selected financial data presented below for each of the quarters
ended March 31, 1995 and 1994 have been derived from BFG's unaudited
consolidated financial statements and reflect all adjustments and accruals that
are, in the opinion of BFG's management, necessary for a fair presentation of
BFG's results of operations and financial position for such quarters.
The audited consolidated financial statements of BFG as of December 31,
1994 and 1993 and for each of the years in the three-year period ended December
31, 1994, and the independent auditor's report thereon, and the unaudited
consolidated financial statements as of March 31, 1995 and 1994 and for each of
the periods then ended, have been incorporated by reference herein. See
"Incorporation of Certain Documents by Reference". This summary financial data
should be read in conjunction with such consolidated financial statements and
notes thereto.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------------------------- -------------------
1990 1991 1992 1993 1994 1994 1995
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA1/:
Sales from continuing operations............. $1,420.5 $1,572.5 $1,647.9 $1,818.3 $2,199.2 $ 502.4 $ 594.0
Cost of sales................................ 964.8 1,098.4 1,133.1 1,278.3 1,523.3 359.0 416.1
Gross profit................................. 455.7 474.1 514.8 540.0 675.9 143.4 177.9
Selling and administrative expenses.......... 335.0 369.5 429.1 444.0 496.2 117.2 130.4
Total operating income....................... 120.7 93.1 75.0 82.7 179.7 26.2 47.5
Interest expense............................. 21.5 37.1 39.3 38.3 47.7 11.7 12.4
Interest income.............................. 24.8 10.7 3.9 5.2 1.8 .4 .4
Income tax (expense)......................... (4.4) (22.5) (2.5) -- (42.9) (3.1) (11.0)
Income from continuing operations before
cumulative effect of change in method of
accounting................................. 99.8 21.6 11.9 15.3 65.7 4.9 17.6
Income (loss) from discontinued operations... 36.5 (102.2) (21.3) 113.0 10.0 -- --
Cumulative effect of change in method of
accounting................................. -- -- (286.5) -- -- -- --
Net income (loss)............................ 136.3 (80.6) (295.9) 128.3 75.7 4.9 17.6
Income from continuing operations per share
of common stock............................ $ 3.60 $ .52 $ .14 $ .28 $ 2.24 $ .11 $ .61
Net income (loss) per share of common
stock...................................... 5.04 (3.50) (11.90) 4.68 2.63 .11 .61
Dividends per share of common stock.......... 2.12 2.20 2.20 2.20 2.20 .55 .55
Ratio of earnings to fixed charges2/......... 4.23 1.83 1.20 1.19 2.64 2.68
Ratio of earnings to fixed charges and
preferred dividends3/...................... 3.01 1.38 -- -- 2.20 2.27
Pro forma ratio of earnings to fixed
charges(4)................................. 2.31 2.36
Pro forma ratio of earnings to fixed charges
and preferred dividends(4)................. 2.31 2.36
BALANCE SHEET DATA:
Current assets............................... $ 947.6 $ 775.9 $ 797.1 $ 793.8 $ 878.8 $ 813.4 $ 920.8
Current liabilities.......................... 667.2 530.0 565.5 469.4 638.0 522.2 677.4
Net working capital.......................... 280.4 245.9 231.6 324.4 240.8 291.2 243.4
Net property................................. 1,155.3 1,171.0 1,215.8 836.0 873.3 834.9 877.8
Total assets................................. 2,414.2 2,270.6 2,451.7 2,359.9 2,468.9 2,378.1 2,510.8
Non-current long-term debt and capital lease
obligations................................ 209.8 344.2 403.1 486.5 427.1 460.1 419.7
Redeemable preferred stocks.................. 8.7 7.5 6.3 3.8 -- 3.8 --
Total shareholders' equity................... 1,358.9 1,214.0 828.8 895.3 922.6 886.2 924.6
</TABLE>
- ---------------
1/ All Statement of Income Data have been restated to exclude results of the
former Geon Vinyl Division which was divested in 1993 and is now accounted
for as discontinued operations.
2/ For the purpose of computing the ratio of earnings to fixed charges,
"earnings" represent income from continuing operations before income taxes
and cumulative effect of change in method of accounting, fixed charges
(excluding capitalized interest), amortization of previously capitalized
interest and undistributed earnings (losses) of affiliated companies that are
accounted for on the equity method. "Fixed charges" consist of interest
expense (including capitalized interest and interest costs on company-owned
life insurance policies), amortization of deferred debt expenses and discount
or premium and the portion of rental expense representative of an interest
factor.
3/ In 1992 and 1993, earnings were insufficient to cover fixed charges and
preferred stock dividends by $0.6 and $0.9, respectively.
4/ Assuming the Underwriters' over-allotment option is not exercised.
8
<PAGE> 10
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities will be used by the
Issuer to purchase the Junior Subordinated Debentures issued by BFG, as
described herein. BFG expects to use the proceeds to redeem all of the
outstanding shares of BFG's $3.50 Cumulative Convertible Preferred Stock, Series
D, or for other general corporate purposes.
CAPITALIZATION
The following table sets forth the consolidated capitalization of BFG as of
March 31, 1995, and as adjusted to reflect the application of the estimated net
proceeds from the sale of the Preferred Securities (assuming the Underwriters'
over-allotment option is not exercised) as described under "Use of Proceeds".
<TABLE>
<CAPTION>
MARCH 31, 1995
--------------------------
ACTUAL AS ADJUSTED
---------- -----------
(DOLLARS IN MILLIONS)
<S> <C> <C>
Short-term bank debt............................................. $ 121.1 $ 121.1
Current maturities of long-term debt and capital lease
obligations.................................................... 55.3 55.3
Long-term debt and capital lease obligations..................... 419.7 419.7
Company-obligated minority interest in subsidiary(1)............. -- 106.1
Shareholders' Equity:
$3.50 Cumulative Convertible Preferred Stock, Series D...... 110.0 --
Common Stock................................................ 129.8 129.8
Additional Capital.......................................... 402.5 402.5
Income retained in the business............................. 307.1 305.6
Translation adjustments, minimum pension liability and
unearned stock awards..................................... (21.3) (21.3)
Common stock held in Treasury............................... (3.5) (3.5)
-------- --------
Total Shareholders' Equity.................................. 924.6 813.1
-------- --------
Total Capitalization............................................. $1,520.7 $ 1,515.3
======== ========
</TABLE>
- ---------------
(1) As described herein, the assets of the Issuer will include $110 of Junior
Subordinated Debentures of BFG which will constitute approximately 97% of
the total assets of the Issuer less issuance costs.
RECENT DEVELOPMENTS
On May 4, 1995 BFG sold its wholly-owned subsidiary, Arrowhead Industrial
Water, Inc., for $80 million in cash, subject to adjustments. The proceeds were
used to reduce short-term debt. In addition, on May 17, 1995, BFG issued $20
million of long-term debt. These proceeds were also used to reduce short-term
debt.
DESCRIPTION OF THE PREFERRED SECURITIES
The Trust Agreement among BFG as Depositor (the "Depositor"), The Bank of
New York, as Trustee, and The Bank of New York (Delaware), as Delaware Trustee,
authorizes and creates the Issuer. Pursuant to the terms of the Trust Agreement,
the Trustee has created the Preferred Securities and the Common Securities
(together, the "Issuer Securities"). The Preferred Securities represent
undivided beneficial interests in the Issuer and entitle the holders thereof to
a preference in certain circumstances with respect to distributions and amounts
payable on redemption or liquidation over the Common Securities, as well as
other benefits as described in the Trust Agreement. The following summaries of
certain provisions of the Trust Agreement do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Trust Agreement, including the
9
<PAGE> 11
definitions therein of certain terms, and the Trust Indenture Act. Wherever
particular sections or defined terms of the Trust Agreement are referred to,
such sections or defined terms are incorporated herein by reference. The Trust
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part.
GENERAL
All of the Common Securities are owned by BFG. The Common Securities rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities except as described under "-- Subordination of Common Securities".
(Section 4.03) The Junior Subordinated Debentures will be owned by the Trustee
and held in trust for the benefit of the holders of the Issuer Securities.
(Section 2.09) The Guarantee is a full and unconditional guarantee with respect
to the Preferred Securities but does not guarantee payment of distributions or
amounts payable on redemption or liquidation of the Preferred Securities when
the Issuer does not have funds legally available to make such payments.
DISTRIBUTIONS
The distributions payable on each Preferred Security will be fixed at a
rate per annum of % of the stated liquidation preference of $25 per Preferred
Security. Distributions that are in arrears for more than one quarter will bear
interest on the amount thereof at the rate per annum of % thereof. The term
"distributions" as used herein includes any such interest payable, unless
otherwise stated. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. (Sections
4.01(a) and 4.01(b)).
Distributions on the Preferred Securities will be cumulative, will accrue
from , 1995, the date of initial issuance thereof, and will be
payable quarterly in arrears, on March 31, June 30, September 30 and December 31
of each year, commencing , 1995, except as otherwise described
below. In the event that any date on which distributions are otherwise payable
on the Preferred Securities is not a Business Day, payment of the distribution
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect to any such delay)
except that, if such Business Day is in the next succeeding calendar year,
payment of such distribution shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date (each
date on which distributions are otherwise payable in accordance with the
foregoing, a "Distribution Date"). A "Business Day" shall mean any day other
than a Saturday or a Sunday or a day on which banking institutions in The City
of New York are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee or the
Debenture Trustee (as defined herein) is closed for business. (Section 4.01(a)).
BFG has the right, under the Indenture pursuant to which it will issue the
Junior Subordinated Debentures (the "Indenture"), to extend the interest payment
period from time to time on the Junior Subordinated Debentures to a period not
exceeding 20 consecutive quarters, with the consequence that quarterly
distributions on the Preferred Securities would be deferred (but would continue
to accrue with interest thereon, including interest payable on unpaid interest
at the rate per annum set forth above, compounded quarterly) by the Issuer
during any such extended interest payment period. In the event that BFG
exercises this right, during such period BFG may not declare or pay any
dividends or distributions (other than dividends or distributions in common
stock of BFG) on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, or make any guarantee payments with
respect to the foregoing (other than payments under the Guarantee). Prior to the
termination of any such extended interest payment period, BFG may further extend
the interest payment period, provided that such extended interest payment period
together with all such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity of the Junior Subordinated
Debentures. Upon the termination of any extended interest payment period and the
payment of all amounts then due, BFG may select a new extended interest payment
period, subject to the above requirements. See "Description of the Junior
Subordinated Debentures -- Interest" and "-- Option to Extend Interest Payment
Period".
10
<PAGE> 12
It is anticipated that the income of the Issuer available for distribution
to the holders of the Preferred Securities will be limited to payments under the
Junior Subordinated Debentures in which the Issuer will invest the proceeds from
the issuance and sale of the Preferred Securities and the Common Securities. See
"Description of the Junior Subordinated Debentures". If BFG does not make
interest payments on the Junior Subordinated Debentures, the Trustee will not
have funds available to pay distributions on the Preferred Securities. The
payment of distributions (if and to the extent the Issuer has funds legally
available for the payment of such distributions and cash sufficient to make such
payments) is guaranteed on a limited basis by BFG as set forth herein under
"Description of the Guarantee".
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of the Issuer on the relevant record
dates, which, as long as the Preferred Securities remain in book-entry-only
form, will be one Business Day prior to the relevant Distribution Date. Subject
to any applicable laws and regulations and the provisions of the Trust
Agreement, each such payment will be made as described under "Book-Entry-Only
Issuance -- The Depository Trust Company" below. In the event the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the date 15 days prior to the relevant Distribution Date. (Section 4.01(d)).
REDEMPTION
Upon the repayment of the Junior Subordinated Debentures, whether at
maturity or upon earlier redemption as provided in the Indenture, the proceeds
from such repayment shall be applied by the Trustee to redeem a Like Amount (as
defined below) of Preferred Securities, upon not less than 30 nor more than 60
days' notice, at the Redemption Price. Such payment in redemption shall be due
without limitation and in all events. See "Description of the Junior
Subordinated Debentures -- Optional Redemption".
BFG has the right to redeem the Junior Subordinated Debentures (a) on or
after , 2000, in whole or in part, subject to the conditions
described under "Description of the Junior Subordinated Debentures -- Optional
Redemption", or (b) at any time, in whole but not in part, on occurrence of a
Tax Event (as defined below) and subject to the further conditions described
under "Description of the Junior Subordinated Debentures -- Optional
Redemption".
The stated liquidation preference of the Preferred Securities redeemed
pursuant to a redemption of the Junior Subordinated Debentures in either of the
circumstances referred to above may not exceed the amount derived, directly or
indirectly, by BFG from the issuance and sale of BFG's common stock within two
years preceding the date fixed for such redemption.
"Tax Event" means the receipt by the Issuer of an opinion of counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to, clarification of, or change (including any announced prospective change) in,
the laws or treaties (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or (b) any judicial decision, official administrative pronouncement, ruling,
regulatory procedure, notice or announcement (including any notice or
announcement of intent to adopt such procedures or regulations) ("Administrative
Action"), or (c) any amendment to, clarification of, or change in the official
position or the interpretation of such Administrative Action or judicial
decision or any interpretation or pronouncement that provides for a position
with respect to such Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body, irrespective
of the manner in which such amendment, clarification or change is made known,
which amendment, clarification, or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities, there is more than an insubstantial risk that (i) the Issuer is, or
will be, subject to United States Federal income tax with respect to interest
received on the Junior Subordinated Debentures, (ii) interest payable by BFG on
the Junior Subordinated Debentures is not, or will not be, fully deductible for
United States Federal income tax purposes, or (iii) the Issuer is or will be
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
11
<PAGE> 13
"Like Amount" means (i) with respect to a redemption of Preferred
Securities, Preferred Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture and the proceeds of which will be used
to pay the Redemption Price of such Preferred Securities and (ii) with respect
to a distribution to holders of Preferred Securities of Junior Subordinated
Debentures in connection with a liquidation of the Issuer upon the bankruptcy,
dissolution or liquidation of BFG, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
the holder to whom such Junior Subordinated Debentures are distributed.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each redemption date shall be redeemed at
the Redemption Price with the proceeds from the contemporaneous redemption of
Junior Subordinated Debentures. Redemptions of the Preferred Securities shall be
made and the Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Issuer has funds legally available for the payment
of such Redemption Price. (Section 4.02(e)). See also "-- Subordination of
Common Securities".
If the Issuer gives a notice of redemption in respect of Preferred
Securities (which notice will be irrevocable), then, by 12:00 noon, New York
time, on the Redemption Date, the Trustee will irrevocably deposit with DTC
funds sufficient to pay the applicable Redemption Price and will give DTC
irrevocable instructions and authority to pay the Redemption Price to the
holders of the Preferred Securities. See "Book-Entry-Only Issuance -- The
Depository Trust Company". If the Preferred Securities are no longer in
book-entry-only form, the Issuer will irrevocably deposit with the paying agent
for the Preferred Securities funds sufficient to pay the applicable Redemption
Price and will give such paying agent irrevocable instructions and authority to
pay the Redemption Price to the holders thereof upon surrender of their
certificates evidencing Preferred Securities. Notwithstanding the foregoing,
distributions payable on or prior to the redemption date for any Preferred
Securities called for redemption shall be payable to the holders of such
Preferred Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the Redemption Date, all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price, but without
interest on such Redemption Price, and such Preferred Securities will cease to
be outstanding. In the event that any date fixed for redemption of Preferred
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer or by BFG
pursuant to the Guarantee described herein under "Description of the Guarantee",
distributions on such Preferred Securities will continue to accrue at the then
applicable rate, from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), BFG or its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
Payment of the Redemption Price on the Preferred Securities to holders of
Preferred Securities shall be made to the recordholders thereof as they appear
on the register for the Preferred Securities on the relevant record date, which
shall be one Business Day prior to the relevant Redemption Date; provided,
however, that in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the date 15 days prior
to the Redemption Date. (Section 4.02(g)).
If less than all the securities issued by the Issuer are to be redeemed on
a Redemption Date, then the aggregate liquidation preference of such securities
to be redeemed shall be allocated 3% to the Common Securities and 97% to the
Preferred Securities. The particular Preferred Securities to be redeemed shall
12
<PAGE> 14
be selected not more than 60 days prior to the Redemption Date by the Trustee
from the outstanding Preferred Securities 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 $25 or integral
multiples thereof) of the liquidation preference of Preferred Securities of a
denomination larger than $25. The Trustee shall promptly notify the security
registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
liquidation preference thereof to be redeemed. For all purposes of the Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
liquidation preference of Preferred Securities that has been or is to be
redeemed. (Section 4.02(h)).
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the Redemption Price of, the Issuer
Securities, as applicable, shall be made pro rata based on the liquidation
preference of the Issuer Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default (as defined below, see
"-- Events of Default; Notice") under the Trust Agreement shall have occurred
and be continuing, no payment of any Distribution on, or Redemption Price of,
any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid distributions on all
outstanding Preferred Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all outstanding Preferred Securities, shall have
been made or provided for, and all funds available to the Trustee shall first be
applied to the payment in full in cash of all distributions on, or Redemption
Price of, Preferred Securities then due and payable. (Section 4.03).
In the case of any Event of Default under the Trust Agreement resulting
from an "Event of Default" under the Indenture, the holder of Common Securities
will be deemed to have waived any such Event of Default under the Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until any
such Events of Default under the Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Trustee shall
act solely on behalf of the holders of the Preferred Securities and not the
holder of the Common Securities, and only the holders of the Preferred
Securities will have the right to direct the Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to the Trust Agreement, the Issuer shall be liquidated by the
Trustee on the first to occur of: (i) December 31, 2030, the expiration of the
term of the Trust; (ii) the bankruptcy, dissolution or liquidation of BFG; and
(iii) the redemption of all of the Preferred Securities. (Sections 9.01 and
9.02).
If an early termination occurs as described in clause (ii) above, the
Issuer shall be liquidated by the Trustee as expeditiously as the Trustee
determines to be appropriate by distributing to each holder of Preferred
Securities and Common Securities a Like Amount of Junior Subordinated
Debentures, unless such distribution is determined by the Trustee not to be
practical, in which event such holders will be entitled to receive, out of the
assets of the Issuer available for distribution to holders after satisfaction of
liabilities of creditors, an amount equal to, in the case of holders of
Preferred Securities, the aggregate of the stated liquidation preference of $25
per Preferred Security plus accrued and unpaid distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Issuer has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Issuer on the Preferred
Securities shall be paid on a pro rata basis. The holder(s) of the Common
Securities will be entitled to receive distributions upon any such dissolution
pro rata with the holders of the Preferred Securities, except that if an Event
of Default has occurred and is continuing under the Trust Agreement, the
Preferred Securities shall have a preference over the Common Securities.
(Sections 9.04(a) and 9.04(d)).
13
<PAGE> 15
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under the
Trust Agreement with respect to the Preferred Securities issued thereunder
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of an "Event of Default" as defined in Section 501
of the Indenture (see "Description of Junior Subordinated Debentures --
Events of Default"); or
(ii) default by the Trustee in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by the Trustee in the payment of any Redemption Price of
any Preferred Security or Common Security when it becomes due and payable;
or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustee in the Trust Agreement (other
than a covenant or warranty a default in the performance of which or the
breach of which is specifically dealt with in clause (ii) or (iii) above),
and continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Trustee by
the Holders of at least 10% in Liquidation Amount of the outstanding
Preferred Securities 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
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Trustee.
Within five Business Days after the occurrence of any Event of Default, the
Trustee shall transmit notice of any such Event of Default actually known to the
Trustee to the holders of Preferred Securities and the Depositor, unless such
Event of Default shall have been cured or waived.
Unless an Event of Default shall have occurred and be continuing, the
Trustee may be removed at any time by act of the holder of the Common
Securities. If an Event of Default has occurred and is continuing, the Trustee
may be removed at such time by act of the holders of a majority in liquidation
preference of the Preferred Securities, delivered to the Trustee (in its
individual capacity and on behalf of the Issuer). No registration or removal of
the Trustee and no appointment of a successor trustee shall be effective until
the acceptance of appointment by the successor Trustee in accordance with the
provisions of the Trust Agreement. (Section 8.10).
If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a preference over the Common Securities upon dissolution
of the Issuer as described above. See "-- Liquidation Distribution Upon
Dissolution".
MERGER OR CONSOLIDATION OF THE TRUSTEE OR THE DELAWARE TRUSTEE
Any corporation into which the Trustee or the Delaware Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee or the Delaware
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee or the Delaware Trustee, shall
be the successor to the Trustee or the Delaware Trustee under the Trust
Agreement, provided such corporation shall be otherwise qualified and eligible.
(Section 8.12).
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" and as otherwise required by law and the Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
(Section 6.01(a)).
If any proposed amendment to the Trust Agreement provides for, or the
Issuer otherwise proposes to effect (i) any action that would adversely affect
the powers, preferences or special rights of the holders of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise or
(ii) the
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dissolution, winding-up or termination of the Issuer, other than pursuant to the
Trust Agreement, then the holders of outstanding Preferred Securities will be
entitled to vote on such amendment or proposal of the Trustee (but not on any
other amendment or proposal as a class), and such amendment or proposal shall
not be effective except with the approval of the holders of 66 2/3% in
liquidation preference of such outstanding Preferred Securities. (Section
6.02(c)).
So long as any Junior Subordinated Debentures are held by the Trustee, the
Trustee shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee (as defined
herein), or executing any trust or power conferred on the Debenture Trustee with
respect to the Junior Subordinated Debentures, (ii) waive any past default which
is waivable under Section 513 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of at least 66 2/3% in liquidation
preference of the outstanding Preferred Securities; provided, however, that
where a consent under the Indenture would require the consent of each holder of
Junior Subordinated Debentures affected thereby, no such consent shall be given
by the Trustee without the prior consent of each holder of Preferred Securities.
The Trustee shall not revoke any action previously authorized or approved by a
vote of the Preferred Securities. The Trustee shall notify all holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee. In addition to obtaining the foregoing approvals of the holders of the
Preferred Securities, prior to taking any of the foregoing actions, the Trustee
shall obtain an opinion of counsel experienced in such matters to the effect
that the Issuer will not be classified as a corporation or partnership for
United States federal income tax purposes on account of such action. (Section
6.01(b)).
Any required approval of holders of Preferred Securities may be given at a
separate meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Trustee will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be given
to each holder of record of Preferred Securities in the manner set forth in the
Trust Agreement. (Section 6.02).
No vote or consent of the holders of Preferred Securities will be required
for the Issuer to redeem and cancel Preferred Securities in accordance with the
Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by BFG, the Trustee or any affiliate of BFG or the
Trustee, shall, for purposes of such vote or consent, be treated as if they were
not outstanding.
CO-TRUSTEES AND SEPARATE TRUSTEE
Unless an Event of Default under the Trust Agreement shall have occurred
and be continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property (as defined in the Trust Agreement) may at the time be
located, the holder of the Common Securities and the Trustee shall have power to
appoint, and upon the written request of the Trustee, BFG, as Depositor, shall
for such purpose join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint one
or more persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such person or persons
in such capacity, any property, title, right or power deemed necessary or
desirable, subject to the provisions of the Trust Agreement provisions of this
Section. If BFG, as Depositor, does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Event of Default
under the Indenture has occurred and is continuing, the Trustee alone shall have
power to make such appointment. (Section 8.09).
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PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to DTC, which
shall credit the relevant accounts at DTC on the applicable Distribution Dates
or, if the Preferred Securities are not held by DTC, such payments shall be made
by check mailed to the address of the holder entitled thereto as such address
shall appear on the Register. The Paying Agent shall initially be BFG. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Trustee and the Depositor. In the event that BFG shall no longer
be the Paying Agent, the Trustee shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company). (Sections 4.04 and 5.09).
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Preferred Securities. The
Preferred Securities will be issued only as fully-registered securities
registered in the name of Cede & Co. (DTC's nominee). One or more
fully-registered global Preferred Security certificates will be issued,
representing in the aggregate the total number of Preferred Securities, and will
be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement of securities transactions among Participants through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
Inc. (the "New York Stock Exchange"), the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
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Redemption notices shall be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
Although voting with respect to the Preferred Securities is limited to the
holders of record of the Preferred Securities, in those cases where a vote is
required, neither DTC nor Cede & Co. will itself consent or vote with respect to
Preferred Securities. Under its usual procedures, DTC would mail an Omnibus
Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Preferred Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Distribution payments on the Preferred Securities will be made by the
Issuer to DTC. DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive payments
on such payment date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and will be the
responsibility of such Participant and not of DTC, the Issuer or BFG, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of distributions to DTC is the responsibility of the Issuer,
disbursement of such payments to Direct Participants is the responsibility of
DTC, and disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Preferred Securities at any time by giving reasonable notice to
the Issuer. If DTC stops providing such services and a successor securities
depository is not obtained, Preferred Security certificates must be printed and
delivered. Additionally, the Issuer (with the consent of BFG) could decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depository). In that event, definitive certificates for the Preferred
Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuer believes to be reliable, but the
Issuer takes no responsibility for the accuracy thereof. The Issuer has no
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
REGISTRAR AND TRANSFER AGENT
The Bank of New York will act as registrar and transfer agent for the
Preferred Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Issuer, but upon payment (with the giving of such
indemnity as the Issuer or BFG may require) in respect of any tax or other
governmental charges which may be imposed in relation to it.
The Issuer will not be required to register or cause to be registered any
transfer of Preferred Securities after they have been called for redemption.
CONCERNING THE TRUSTEE
BFG and certain of its subsidiaries maintain deposit accounts and conduct
other banking transactions with the Trustee in the ordinary course of their
businesses.
MISCELLANEOUS
Application has been made to list the Preferred Securities on the New York
Stock Exchange.
The Trustee is authorized and directed to conduct its affairs and to
operate the Issuer so that the Issuer will not be deemed to be an "investment
company" required to be registered under the 1940 Act or taxed as a corporation
for United States Federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of BFG for United States
Federal income tax purposes. In this connection, the Trustee is authorized to
take any action, not inconsistent with applicable law, the certificate of trust
or the Trust Agreement, that the Trustee determines in its discretion to be
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<PAGE> 19
necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the holders of the Preferred Securities.
Holders of the Preferred Securities have no preemptive rights.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee that
will be executed and delivered by BFG for the benefit of the holders from time
to time of Preferred Securities. The Guarantee will be qualified as an indenture
under the Trust Indenture Act. The Bank of New York will act as indenture
trustee (the "Guarantee Trustee") under the Guarantee for the purposes of
compliance with the Trust Indenture Act. The terms of the Guarantee will be
those set forth in such Guarantee and those made part of such Guarantee by the
Trust Indenture Act. The summary does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and the Trust Indenture Act.
The Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Preferred Securities.
GENERAL
BFG will fully and unconditionally agree, to the extent set forth herein,
to pay the Guarantee Payments (as defined below) in full to the holders of the
Preferred Securities (except to the extent paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim
that the Issuer may have or assert. The following payments with respect to the
Preferred Securities, to the extent not paid by or on behalf of the Issuer (the
"Guarantee Payments"), will be subject to the Guarantee (without duplication):
(i) any accrued and unpaid distributions required to be paid on the Preferred
Securities, to the extent the Issuer has funds legally available therefor, (ii)
the redemption price, including all accrued and unpaid distributions (the
"Redemption Price"), with respect to any Preferred Securities called for
redemption by the Issuer, to the extent the Issuer has funds legally available
therefor and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with a redemption of all of
the Preferred Securities), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid distributions on the Preferred Securities to
the date of payment, to the extent the Issuer has funds legally available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to holders of Preferred Securities in liquidation of the Issuer.
BFG's obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by BFG to the holders of Preferred Securities or by
causing the Issuer to pay such amounts to such holders.
The Guarantee will be a full and unconditional guarantee with respect to
the Preferred Securities issued by the Issuer from the time of issuance of the
Preferred Securities, but will not apply to any payment of distributions if and
to the extent that the Issuer does not have funds legally available to make such
payments or to collection of payment. If BFG does not make interest payments on
the Junior Subordinated Debentures held by the Issuer, it is expected that the
Issuer will not pay distributions on the Preferred Securities. The Guarantee
will rank subordinate and junior in right of payment to all liabilities of BFG
(except those made pari passu by their terms). See "-- Status of the Guarantee".
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required), the
terms of the Guarantee may be changed only with the prior approval of the
holders of not less than 66 2/3% in liquidation preference of the outstanding
Preferred Securities. All guarantees and agreements contained in the Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
BFG and shall inure to the benefit of the holders of the Preferred Securities
then outstanding.
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EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of BFG
to perform any of its payment obligations thereunder. The holders of a majority
in liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of the Guarantee or to direct the exercise of
any trust or power conferred upon the Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce the Guarantee, any holder of
Preferred Securities may, after a period of 30 days has elapsed from such
holder's written request to the Guarantee Trustee to enforce the Guarantee,
institute a legal proceeding directly against BFG to enforce the Guarantee
Trustee's rights under such Guarantee without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other person or
entity.
BFG will be required to provide annually to the Guarantee Trustee a
statement as to the performance by BFG of certain of its obligations under the
Guarantee and as to any default in such performance.
BFG will also be required to file annually with the Guarantee Trustee an
officer's certificate as to BFG's compliance with all conditions under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default by BFG in
performance of the Guarantee, undertakes to perform only such duties as are
specifically set forth in the Guarantee and, after default with respect to the
Guarantee, must exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. Subject to this provision,
the Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of Preferred
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of all Preferred Securities, the
distribution of Junior Subordinated Debentures to holders of Preferred
Securities in exchange for all of the Preferred Securities or upon full payment
of the amounts payable upon liquidation of the Issuer. The Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities must restore payment of any sums paid
under the Preferred Securities or the Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of BFG and will rank
(i) subordinate and junior in right of payment to all liabilities of BFG (except
liabilities that may be made pari passu by their terms), (ii) pari passu with
the most senior preferred or preference stock now or hereafter issued by BFG and
with any guarantee now or hereafter entered into by BFG in respect of any
preferred or preference stock of any affiliate of BFG and (iii) senior to BFG's
common stock. The Trust Agreement provides that each holder of Preferred
Securities by acceptance thereof agrees to the subordination provisions and
other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection
(i.e., the guaranteed party may institute a legal proceeding directly against
the Guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity).
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of the Junior
Subordinated Debentures in which the Issuer will invest the proceeds of the
issuance and sale of the Issuer Securities. The following description does not
purport to be complete and is qualified in its entirety by reference to the
description in the Indenture (the "Indenture") dated as of , 1995,
between BFG and The Bank of New York, as trustee with respect to the Junior
Subordinated Debentures (the "Debenture Trustee"), which is filed as an exhibit
to the Registration Statement of which this Prospectus forms a part. Whenever
particular provisions or defined terms in the Indenture are referred to herein,
such provisions or defined terms are incorporated by reference herein. Section
references used herein are references to provisions of the Indenture unless
otherwise noted.
GENERAL
The Junior Subordinated Debentures will be limited in aggregate principal
amount to approximately $130.4 million, such amount being the sum of the
aggregate stated liquidation preference of the Preferred Securities and the
consideration paid by BFG for the Common Securities. The Junior Subordinated
Debentures are unsecured, subordinated obligations of BFG which rank junior to
all of BFG's Senior Indebtedness (as defined below).
The entire outstanding principal amount of the Junior Subordinated
Debentures will become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest (as hereinafter defined), if
any, on , 2025.
OPTIONAL REDEMPTION
On or after , 2000 and subject to the Equity Call Requirement (as
defined below), BFG will have the right, at any time and from time to time, to
redeem the Junior Subordinated Debentures, in whole or in part, at a redemption
price equal to 100% of the principal amount of the Junior Subordinated
Debentures being redeemed, together with any accrued but unpaid interest,
including Additional Interest, if any, to the redemption date.
If a Tax Event shall occur and be continuing and, subject to the Equity
Call Requirement, BFG shall have the right to redeem the Junior Subordinated
Debentures in whole but not in part, at a Redemption Price equal to 100% of the
principal amount of Junior Subordinated Debentures then outstanding plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date.
The principal amount of the Junior Subordinated Debentures redeemed in the
circumstances described in either of the two immediately preceding paragraphs
may not exceed 103% of the amount of the proceeds derived, directly or
indirectly, by BFG or its subsidiaries from the issuance and sale of BFG's
common stock within two years preceding the date fixed for redemption (the
"Equity Call Requirement"). For so long as the Issuer is the holder of all the
outstanding Junior Subordinated Debentures, the proceeds of any such redemption
will be used by the Issuer to redeem Preferred Securities in accordance with
their terms. BFG may not redeem the Junior Subordinated Debentures in part
unless all accrued and unpaid interest (including any Additional Interest) has
been paid in full on all outstanding Junior Subordinated Debentures for all
quarterly interest periods terminating on or prior to the date of redemption.
Any optional redemption of the Junior Subordinated Debentures shall be made
upon not less than 30 nor more than 60 days' notice, as provided in the
Indenture.
INTEREST
The Junior Subordinated Debentures shall bear interest at the rate of %
per annum. Such interest is payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an "Interest Payment Date"),
commencing , 1995, to the person in whose name each Junior
Subordinated Debenture is registered, subject to certain exceptions, by the
close of business on
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<PAGE> 22
the Business Day next preceding such Interest Payment Date. It is anticipated
that the Issuer will be the sole holder of the Junior Subordinated Debentures.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Junior Subordinated Debentures is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
BFG shall have the right at any time during the term of the Junior
Subordinated Debentures to extend the interest payment period from time to time
to a period not exceeding 20 consecutive quarters (the "Extension Period")
during which period interest will compound quarterly. At the end of this
Extension Period BFG must pay all interest then accrued and unpaid (together
with interest thereon at the rate specified for the Junior Subordinated
Debentures to the extent permitted by applicable law). However, during any such
Extension Period, BFG shall not declare or pay any dividend or distribution
(other than a dividend or distribution in common stock of BFG) on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock, or make any guarantee payments with respect to the foregoing
(other than payments under the Guarantee). Prior to the termination of any such
Extension Period, BFG may further extend the interest payment period, provided
that such Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarters at any one time or
extend beyond the maturity date of the Junior Subordinated Debentures. Upon the
termination of any such Extension Period and the payment of all amounts then
due, BFG may select a new Extension Period, subject to the above requirements.
No interest shall be due and payable during an Extension Period, except at the
end thereof. BFG must give the Issuer and the Debenture Trustee notice of its
selection of such Extension Period at least one Business Day prior to the
earlier of (i) the date the distributions on the Preferred Securities are
payable or (ii) the date the Issuer is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than one Business Day prior to such record
date. BFG shall cause the Trustee to give notice of BFG's selection of such
Extension Period to the holders of the Preferred Securities.
ADDITIONAL INTEREST
If at any time the Issuer shall be required to pay any interest on
distributions in arrears in respect of the Preferred Securities pursuant to the
terms thereof, BFG will pay as interest to the Issuer as the holder of the
Junior Subordinated Debentures an amount of additional interest ("Additional
Interest") equal to such interest on distributions in arrears. In addition, if
the Issuer would be required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority, then, in any case, BFG will
also pay as Additional Interest such amounts as shall be required so that the
net amounts received and retained by the Issuer after paying such taxes, duties,
assessments or governmental charges will be not less than the amounts the Issuer
would have received had no such taxes, duties, assessments or governmental
charges been imposed.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, BFG shall have
the right to set-off any payment it is otherwise required to make thereunder to
the extent BFG has theretofore made, or is concurrently on the date of such
payment making, a payment under the Guarantee.
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SUBORDINATION
The Junior Subordinated Debentures are subordinate and junior in right of
payment to all Senior Indebtedness (as defined below) of BFG as provided in the
Indenture. The Junior Debentures rank equal with obligations to trade creditors
of BFG. No payment of principal of (including redemption and sinking fund
payments), or interest on, the Junior Subordinated Debentures may be made if BFG
has defaulted on any payment of Senior Indebtedness when due, any applicable
grace period with respect to such default has ended and such default has not
been cured or waived, or if the maturity of any Senior Indebtedness has been
accelerated because of a default. (Section 1102). Upon any distribution of
assets of BFG to creditors upon any dissolution, winding-up, liquidation or
reorganization, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium, if any, and
interest due or to become due on, all Senior Indebtedness must be paid in full
before the holders of the Junior Subordinated Debentures are entitled to receive
or retain any payment thereon. (Section 1103). Subject to the prior payment of
all Senior Indebtedness, the rights of the holders of the Junior Subordinated
Debentures will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Junior Subordinated Debentures are
paid in full. (Section 1104).
The term "Senior Indebtedness" shall mean the principal of, premium, if
any, interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of the Indenture or thereafter
incurred, created or assumed:
(a) all indebtedness of BFG on a consolidated basis (other than any
obligations to trade creditors) evidenced by notes, debentures, bonds or
other securities sold by BFG for money borrowed and capitalized lease
obligations;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by BFG or in effect
guaranteed by BFG; and
(c) all renewals, extensions or refundings of indebtedness of the
kinds described in either of the preceding clauses (a) or (b), unless, in
the case of any particular indebtedness, renewal, extension or refunding,
the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari
passu with the Junior Subordinated Debentures. (Section 101).
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued. As of April 30, 1995, BFG had approximately $609.5 million
of principal amount of indebtedness for borrowed money constituting Senior
Indebtedness on a consolidated basis. In addition, as of April 30, 1995, there
were approximately $70 million of contingent obligations constituting Senior
Indebtedness where there exists a financially viable and unrelated primary
obligor and where the risk of loss to BFG is, in the opinion of BFG, remote.
CERTAIN COVENANTS OF BFG
Pursuant to the Indenture, BFG will covenant that it will not declare or
pay any dividends or distributions (other than dividends or distributions in
common stock of BFG) on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, or make any guarantee
payments with respect to the foregoing (other than payments under the Guarantee)
if at such time (i) there shall have occurred any event of which BFG has actual
knowledge that (a) with the giving of notice or the lapse of time, or both,
would constitute an Event of Default under the Indenture and (b) in respect of
which BFG shall not have taken reasonable steps to cure, (ii) BFG shall be in
default with respect to its payment of any obligations under the Guarantee or
(iii) BFG shall have given notice of its selection of an extended interest
payment period as provided in the Indenture and such period, or any extension
thereof, shall be continuing. (Section 1008). BFG will also covenant (i) to
maintain 100% ownership of the Common Securities of the Issuer, (ii) not to
voluntarily dissolve, wind-up or terminate the Trust, except in connection with
the distribution of the Junior Subordinated Debentures to the holders
22
<PAGE> 24
of the Preferred Securities in liquidation of the Issuer or in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Issuer to remain a business
trust and otherwise not to be classified as a corporation for United States
Federal income tax purposes. (Section 1008).
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, that has occurred and is continuing constitutes an "Event of Default"
with respect to the Junior Subordinated Debentures:
(a) failure for 10 days to pay interest on the Junior Subordinated
Debentures, including any Additional Interest in respect thereof, when due
(subject to the deferral of any due date in the case of an Extension
Period); or
(b) failure to pay principal on the Junior Subordinated Debentures
when due whether at maturity, upon redemption by declaration or otherwise;
or
(c) failure to observe or perform in any material respect any other
covenant contained in the Indenture for 90 days after written notice to BFG
from the Debenture Trustee or the holders of at least 25% in principal
amount of the outstanding Junior Subordinated Debentures; or
(d) certain events in bankruptcy, insolvency or reorganization of BFG.
(Section 501).
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee. (Section 512). The Debenture Trustee or the holders of not less than
25% in aggregate outstanding principal amount of the Junior Subordinated
Debentures may declare the principal due and payable immediately upon an Event
of Default, and should the Debenture Trustee or such holders of Junior
Subordinated Debentures fail to make such declaration the holders of at least
25% in aggregate liquidation preference of Preferred Securities shall have such
right. The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debentures may annul such declaration and waive the
default if the default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration and
any applicable premium has been deposited with the Debenture Trustee. (Section
502).
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders of
all the Junior Subordinated Debentures, waive any past default, except a default
in the payment of principal or interest (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Junior
Subordinated Debenture. (Section 513). BFG is required to file annually with the
Debenture Trustee a certificate as to whether or not BFG is in compliance with
all the conditions and covenants applicable to it under the Indenture. (Section
1004).
In case any Event of Default (as defined in the Indenture) shall occur and
be continuing, the Issuer will have the right to declare the principal of and
the interest on the Junior Subordinated Debentures (including any Additional
Interest) and any other amounts payable under the Indenture to be forthwith due
and payable and to enforce its other rights as a creditor with respect to the
Junior Subordinated Debentures.
A voluntary or involuntary dissolution of the Issuer prior to redemption or
maturity of the Junior Subordinated Debentures would not constitute an Event of
Default with respect to the Junior Subordinated Debentures. If the Issuer is
dissolved, an event BFG and the Issuer consider to be remote, any of the
following, among other things, could occur: (i) a distribution of the Junior
Subordinated Debentures to the holders of the Preferred Securities, (ii) a cash
distribution to the holders of the Preferred Securities out of the sale of
assets of the Issuer, after satisfaction of liabilities to creditors, (iii) a
permitted
23
<PAGE> 25
redemption at par of the Junior Subordinated Debentures, and a consequent
redemption of a Like Amount of the Preferred Securities, at the option of BFG
under the circumstances described in "-- Optional Redemption" or (iv) the
rollover of the Trust Property into another entity with similar characteristics.
FORM, EXCHANGE, AND TRANSFER
The Junior Subordinated Debentures will be issuable only in registered
form, without coupons and only in denominations of $25 and integral multiples
thereof. (Section 302)
Subject to the term of the Indenture, Junior Subordinated Debentures may be
presented for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by BFG for such purpose. No
service charge will be made for any registration of transfer or exchange of
Junior Subordinated Debentures, but BFG may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Such transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. BFG has appointed the Trustee as
Security Registrar. (Section 305) BFG may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts. (Section 1002)
If the Junior Subordinated Debentures are to be redeemed in part, BFG will
not be required to issue, register the transfer of or exchange any Junior
Subordinated Debentures during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any such Junior
Subordinated Debentures that may be selected for redemption and ending at the
close of business on the day of such mailing, except the unredeemed portion of
any such Junior Subordinated Debentures being redeemed in part. (Section 305)
PAYMENT AND PAYING AGENTS
Payment of interest on a Junior Subordinated Debenture on any Interest
Payment Date will be made to the Person in whose name such Junior Subordinated
Debenture (or one or more predecessor securities) is registered at the close of
business on the Regular Record Date for such interest. (Section 307)
Principal of and any interest on the Junior Subordinated Debentures will be
payable at the office of such Paying Agent or Paying Agents as BFG may designate
for such purpose from time to time, except that at the option of BFG payment of
any interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Security Register. The corporate trust
office of the Trustee in The City of New York is designated as BFG's sole Paying
Agent for payments with respect to the Junior Subordinated Debentures. BFG may
at any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts. (Section 1002)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting BFG and the Debenture Trustee,
with the consent of the holders of not less than a majority in principal amount
of the outstanding Junior Subordinated Debentures, to modify the Indenture in a
manner affecting the rights of the holders of the Junior Subordinated
Debentures; provided that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debenture, (i) extend the fixed
maturity of the Junior Subordinated Debentures, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or (ii) reduce the percentage of principal amount of Junior Subordinated
Debentures, the holders of which are required to consent to any such
modification of the Indenture. (Section 902).
24
<PAGE> 26
CONSOLIDATION, MERGER AND SALE
The Indenture does not contain any covenant that restricts BFG's ability to
merge or consolidate with or into any other corporation, sell or convey all or
substantially all of its assets to any person, firm or corporation or otherwise
engage in restructuring transactions. (Section 801).
SATISFACTION AND DISCHARGE
Under the terms of the Indenture, BFG will be discharged from any and all
obligations in respect of the Junior Subordinated Debentures (except in each
case for certain obligations to register the transfer or exchange of Junior
Subordinated Debentures, replace stolen, lost or mutilated Junior Subordinated
Debentures and hold moneys for payment in trust) if BFG deposits with the
Debenture Trustee, in trust, moneys in an amount sufficient to pay all the
principal of, and interest on, the Junior Subordinated Debentures on the dates
such payments are due in accordance with the terms of such Junior Subordinated
Debentures. (Section 401).
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the laws of the State of New York. (Section
112).
MISCELLANEOUS
BFG will have the right at all times to assign any of its rights or
obligations under the Indenture to a direct or indirect wholly-owned subsidiary
of BFG; provided, that, in the event of any such assignment, BFG will remain
liable for all such obligations. The Issuer may not assign any of its rights
under the Indenture without the prior written consent of BFG. Subject to the
foregoing, the Indenture will be binding upon and inure to the benefit of the
parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto. (Section
).
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures, such payments will be sufficient to cover
distributions and other payments due on the Preferred Securities, primarily
because (i) the aggregate principal amount of Junior Subordinated Debentures
will be equal to the sum of the aggregate stated liquidation preference of the
Preferred Securities and the Common Securities; (ii) the interest rate and
interest and other payment dates on the Junior Subordinated Debentures will
match the distribution rate and distribution and other payment dates for the
Preferred Securities; (iii) the Trust Agreement provides that BFG shall pay for
all, and the Issuer shall not be obligated to pay, directly or indirectly, for
any, costs, expenses and liabilities of the Issuer, including any income taxes,
duties and other governmental charges, and all costs and expenses with respect
thereto, to which the Issuer may become subject, except for United States
withholding taxes and the Issuer's obligations to Preferred Securityholders
under the Preferred Securities; and (iv) the Trust Agreement further provides
that the Trustee shall not cause or permit the Issuer to, among other things,
engage in any activity that is not consistent with the limited purposes of the
Issuer.
Payments of distributions and other amounts due on the Preferred Securities
(to the extent the Issuer has funds legally available for the payment of such
distributions) are guaranteed by BFG as and to the extent set forth under
"Description of the Guarantee." If and to the extent that BFG does not make
payments on the Junior Subordinated Debentures, the Issuer will not pay
distributions or other amounts due on the Preferred Securities.
If the Guarantee Trustee fails to enforce the Guarantee, a holder of a
Preferred Security may, after a period of 30 days has elapsed from the date of
such holder's written request to the Guarantee Trustee to enforce the Guarantee,
institute a legal proceeding directly against BFG to enforce its rights under
the Guarantee without first instituting a legal proceeding against the Issuer or
any other person or entity.
25
<PAGE> 27
The Preferred Securities evidence the rights of the holders thereof to the
benefits of the Trust, a trust that exists for the sole purpose of issuing its
Issuer Securities and investing the proceeds thereof in debt securities of BFG,
while the Junior Subordinated Debentures represent indebtedness of BFG. A
principal difference between the rights of a holder of a Preferred Security and
a holder of a Junior Subordinated Debenture is that a holder of a Junior
Subordinated Debenture will accrue, and (subject to the permissible extension of
the interest period) is entitled to receive, interest on the principal amount of
Junior Subordinated Debentures held, while a holder of Preferred Securities is
only entitled to receive distributions if and to the extent the Issuer has funds
legally available for the payment of such distributions.
Upon any voluntary or involuntary dissolution, winding-up or termination of
the Issuer, the holders of Preferred Securities will be entitled to receive, out
of assets legally available for distribution to holders, the Liquidation
Distribution in cash. See "Description of the Preferred Securities --
Liquidation Distribution Upon Dissolution". Upon any voluntary or involuntary
liquidation or bankruptcy of BFG, the Issuer, as holder of the Junior
Subordinated Debentures, would be a subordinated creditor of BFG, subordinated
in right of payment to all Senior Indebtedness, but entitled to receive payment
in full of principal and interest, before any stockholders of BFG receive
payments or distributions. Since BFG is Guarantor under the Guarantee and has
agreed to pay for all costs, expenses and liabilities of the Issuer (other than
United States withholding taxes and other than the Issuer's obligations to
Preferred Securityholders under the Preferred Securities), the positions of a
holder of Preferred Securities and a holder of Junior Subordinated Debentures
relative to other creditors and to stockholders of BFG in the event of
liquidation or bankruptcy of BFG would be substantially the same.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Junior Subordinated
Debentures. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness, the subordination provisions of the Junior Subordinated
Debentures provide that no payments may be made in respect of the Junior
Subordinated Debentures until such Senior Indebtedness has been paid in full or
any payment default thereunder has been cured or waived. Failure to make
required payments on the Junior Subordinated Debentures would constitute an
Event of Default under the Indenture.
UNITED STATES TAXATION
GENERAL
This section is a summary of the principal United States Federal income tax
considerations that may be relevant to prospective purchasers of Preferred
Securities and represents the opinion of White & Case, special counsel to BFG
and the Issuer, insofar as it relates to matters of law and legal conclusions
with respect thereto. This section is based upon current provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), existing and proposed
Treasury Regulations thereunder and current administrative rulings and court
decisions, all of which are subject to change (which change may be retroactive).
Subsequent changes may cause tax consequences to vary substantially from the
consequences described below.
The following discussion does not address all United States Federal income
tax matters affecting holders of Preferred Securities ("Preferred
Securityholders"). Moreover, the discussion addresses the United States Federal
income tax considerations of Preferred Securityholders who are citizens or
residents of the United States, corporations, partnerships or other entities
created or organized in or under the laws of the United States or any political
subdivision thereof or therein, estates or trusts the income of which is subject
to United States Federal income taxation regardless of its source or other
holders who otherwise are subject to United States Federal income taxation on a
net income basis with respect to Preferred Securities ("U.S. Holders") that hold
the Preferred Securities as a capital asset and does not address the tax
consequences to Preferred Securityholders who are not U.S. Holders ("Non-U.S.
Holders"). This summary does not address tax considerations applicable to
Preferred Securityholders that may be subject to special tax rules, such as
banks, insurance companies, tax-exempt organizations or dealers in securities or
currencies, or to Preferred Securityholders that will hold Preferred
26
<PAGE> 28
Securities as part of a position in a "straddle" or as part of a "hedging" or
"conversion" transaction for United States Federal income tax purposes or that
have a "functional currency" other than the United States dollar. In addition,
this summary does not address the tax consequences to Preferred Securityholders
that do not purchase Preferred Securities as part of their initial distribution.
Accordingly, each prospective Preferred Securityholder, including Non-U.S.
Holders, should consult, and should depend on, his or her own tax advisor in
analyzing the United States Federal, state, local and foreign tax consequences
of the purchase, ownership, sale or exchange of Preferred Securities.
While the Company believes, based upon the advice of its special counsel,
that the Junior Subordinated Debentures should be treated as indebtedness for
United States Federal income tax purposes, Preferred Securityholders should note
that the Internal Revenue Service (the "Service") may attempt to treat the
Junior Subordinated Debentures as equity rather than indebtedness for tax
purposes. If the Service were successful in such attempt, the Preferred
Securities would be subject to redemption at the option of BFG as described
under "Description of the Preferred Securities -- Redemption."
INCOME FROM PREFERRED SECURITIES
In the opinion of White & Case, the Issuer will not be classified as an
association taxable as a corporation for United States Federal income tax
purposes. Each Preferred Securityholder will be treated as owning an undivided
beneficial interest in the Junior Subordinated Debentures. Accordingly, each
U.S. Holder will be required to include in its gross income its share of the
interest income accrued with respect to the Junior Subordinated Debentures
whether or not actually distributed to the Preferred Securityholders. No portion
of such income will be eligible for the dividends received deduction.
SALE OF PREFERRED SECURITIES
Any gain or loss will be recognized by a U.S. Holder on a sale of Preferred
Securities, including a redemption for cash, and will be equal to the difference
between the amount realized and the Preferred Securityholder's adjusted tax
basis in the Preferred Securities sold. A U.S. Holder's adjusted tax basis in a
Preferred Security generally will equal the issue price of such Preferred
Security increased by the amount of original issue discount previously
includible in the gross income of such holder and decreased by the amount of any
payments received on such Preferred Security. Any gain or loss recognized by a
U.S. Holder on the sale of a Preferred Security held for more than one year
generally will be taxable as long-term capital gain or loss.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Under the Indenture, BFG has the option to extend from time to time the
interest payment period on the Junior Subordinated Debentures to a period not
exceeding 20 consecutive quarters but not beyond the maturity date of the Junior
Subordinated Debentures. BFG's option to extend the interest payment period will
cause the Junior Subordinated Debentures to be treated as issued with "original
issue discount" for United States Federal income tax purposes. Accordingly, a
U.S. Holder will accrue interest income (i.e., original issue discount) under a
constant yield basis over the term of the Junior Subordinated Debentures
(including any Extension Period), regardless of the receipt of cash with respect
to the period to which such income is attributable.
As a result, U.S. Holders of record during an Extension Period will include
interest in gross income in advance of the receipt of cash, and any such holders
who dispose of Preferred Securities prior to the record date for the payment of
distributions following such Extension Period will include interest in gross
income but will not receive any cash related thereto. The tax basis of a
Preferred Security will be increased by the amount of any original issue
discount that is included in income without a receipt of cash, and will be
decreased when and if such cash is subsequently received by such U.S. Holder.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments on,
and proceeds from the sale of, a Preferred Security to a noncorporate United
States person within the United States and "backup withholding" at a rate of 31%
will apply to such payments if such United States person fails to provide an
27
<PAGE> 29
accurate taxpayer identification number. Generally, such information reporting
will be made on Forms 1099 by the 31st of January following each calendar year.
Payments of the proceeds from the sale of Preferred Securities to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption from information
reporting and backup withholding.
These backup withholding tax and information reporting rules are subject to
proposed Treasury Regulations and currently are under review by the United
States Treasury. Accordingly, the application of such rules to the Preferred
Securities could be changed.
28
<PAGE> 30
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, BFG and
the Issuer have agreed that the Issuer will issue and sell to each of the
Underwriters named below, and each of the Underwriters, for whom Goldman, Sachs
& Co. are acting as Representatives, has severally agreed to purchase from the
Issuer the respective number of Preferred Securities set forth opposite its name
below:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER PREFERRED SECURITIES
----------- --------------------
<S> <C>
Goldman, Sachs & Co...............................................
---------
Total................................................... 4,400,000
=========
</TABLE>
Subject to the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all the Preferred Securities
offered hereby, if any are taken.
The Underwriters propose to offer the Preferred Securities in part directly
to the public at the initial public offering price set forth on the cover page
of this Prospectus, and in part to certain securities dealers at such price less
a concession of $.50 per Preferred Security. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $.25 per Preferred
Security to certain brokers and dealers. After the Preferred Securities are
released for sale to the public, the offering price and other selling terms may
from time to time be varied by the Representative.
The Issuer has granted the Underwriters an option exercisable for 30 days
after the date of this Prospectus to purchase up to 660,000 additional Preferred
Securities to cover over-allotments, if any, at the initial public offering
price (with additional Underwriters' Compensation), as set forth on the cover
page of this Prospectus. If the Underwriters exercise their over-allotment
option, the Underwriters have severally agreed, subject to certain conditions,
to purchase approximately the same percentage thereof that the number of
Preferred Securities to be purchased by each of them, as shown in the foregoing
table, bears to the number of Preferred Securities initially offered hereby.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Junior Subordinated Debentures, the
Underwriting Agreement provides that BFG will pay as compensation
("Underwriters' Compensation"), for the Underwriters' arranging the investment
therein of such proceeds, an amount in New York Clearing House (next day) funds
of $.7875 per Preferred Security for the accounts of the several Underwriters.
BFG and the Issuer have agreed, during the period beginning from the date
of the Underwriting Agreement and continuing to and including the earlier of (i)
the date, after the closing date, on which the distribution of the Preferred
Securities and the Guarantee ceases, as determined by the Underwriters, or (ii)
90 days after the closing date, not to offer, sell, contract to sell, or
otherwise dispose of any Preferred Securities, any other interests of the
Issuer, or any preferred stock or any other securities of the Issuer or BFG
which are substantially similar to the Preferred Securities including the
Guarantee, or any securities convertible into or exchangeable for Preferred
Securities, preferred stock or such substantially similar securities of either
the Issuer or BFG, without the prior written consent of the Representatives.
In accordance with Section 34 of the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., no sales of Preferred Securities may be
made to a discretionary account without the prior written approval of the
customer.
Prior to this offering, there has been no public market for the Preferred
Securities. Application will be made to list the Preferred Securities on the New
York Stock Exchange (the "Exchange"). In order to meet one of the requirements
for listing the Preferred Securities on the Exchange, the Underwriters will
29
<PAGE> 31
undertake to sell lots of 100 or more Preferred Securities to a minimum of 400
beneficial holders. Trading of the Preferred Securities on the Exchange is
expected to commence within a seven-day period after the initial delivery of the
Preferred Securities. The Representatives have advised BFG that they intend to
make a market in the Preferred Securities prior to commencement of trading on
the Exchange, but are not obligated to do so and may discontinue any such market
making at any time without notice.
The Issuer and BFG have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, BFG in the ordinary course of business. John
L. Weinberg, Senior Chairman and a retired general partner of Goldman, Sachs &
Co., is a director of the Company. Goldman, Sachs & Co. has rendered financial
advisory services to the Company from time to time and has received customary
fees for its services.
30
<PAGE> 32
EXPERTS
The consolidated financial statements of The B.F.Goodrich Company
incorporated by reference in The B.F.Goodrich Company's Form 10-K for the year
ended December 31, 1994, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the validity of the Trust Agreement and the formation of the Issuer
are being passed upon by White & Case, counsel to BFG and the Issuer. The
validity of the Guarantee and the Junior Subordinated Debentures will be passed
upon on behalf of the Issuer and BFG by Nicholas J. Calise, Vice President,
Associate General Counsel and Secretary of BFG, and on behalf of the
Underwriters by Sullivan & Cromwell, counsel to the Underwriters. As of May 27,
1995, Mr. Calise owned approximately 3,420 shares of BFG's Common Stock. In
addition, he held 2,000 shares of Restricted Stock and 6,100 Performance Shares
under BFG's Key Employees' Stock Option Plan and Performance Share Plan, all of
which are subject to forfeiture; held options to purchase 35,500 shares of
Common Stock; and had credited to his account in BFG's Retirement Plus Savings
Plan approximately 6,126 shares of Common Stock.
31
<PAGE> 33
- ------------------------------------------------------
- ------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF
SUCH INFORMATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Risk Factors.......................... 3
BFGoodrich Capital.................... 5
The B.F.Goodrich Company.............. 5
Summary Financial Information of
BFG................................. 8
Use of Proceeds....................... 9
Capitalization........................ 9
Description of the Preferred
Securities.......................... 9
Description of the Guarantee.......... 18
Description of the Junior Subordinated
Debentures.......................... 20
Relationship Among the Preferred
Securities, the Junior Subordinated
Debentures and the Guarantee........ 25
United States Taxation................ 26
Underwriting.......................... 29
Experts............................... 31
Validity of the Securities............ 31
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
4,400,000
PREFERRED SECURITIES
BFGOODRICH CAPITAL
% CUMULATIVE
QUARTERLY INCOME PREFERRED
SECURITIES, SERIES A
guaranteed to the extent
set forth herein by
THE B.F.GOODRICH
COMPANY
-------------------
PROSPECTUS
-------------------
GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE UNDERWRITERS
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................... $ 43,621
Printing expenses..................................................... 60,000
Rating agency fees.................................................... 101,000
New York Stock Exchange listing fee................................... 48,000
Trustee's fees........................................................ 18,000
Legal fees............................................................ 100,000
Accounting expenses................................................... 25,000
Blue Sky fees and expenses............................................ 18,000
Other................................................................. 36,379
--------
Total............................................................ $450,000
=========
</TABLE>
- ---------------
*All amounts other than the registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under BFG's Restated Certificate of Incorporation no member of the Board of
Directors shall have any personal liability to BFG or its shareholders for
damages for any breach of duty in such capacity, provided that such liability
shall not be limited if a judgment or other final adjudication adverse to the
Director establishes that his or her acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that the
Director personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled or that the Director's acts violated
section 719 of the New York Business Corporation Law ("B.C.L.") (generally
relating to the improper declaration of distributions, improper purchases of
shares, improper distribution of assets after dissolution, or making any
improper loans to directors contrary to specified statutory provisions).
Reference is made to Article TWELFTH of BFG's Restated Certificate of
Incorporation filed as Exhibit 3(a) to BFG's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1988.
Under BFG's By-Laws, any person made, or threatened to be made, a party to
an action or proceeding by reason of the fact that he, his testator or intestate
is or was a director or officer of BFG or served any other corporation in any
capacity at the request of BFG shall be indemnified by BFG to the extent and in
a manner permissible under the laws of the State of New York.
In addition, BFG's By-Laws provide indemnification for directors and
officers where they are acting on behalf of BFG where the final judgment does
not establish that the director or officer acted in bad faith or was
deliberately dishonest, or gained a financial profit or other advantage to which
he was not legally entitled. The By-Laws provide that the indemnification rights
shall be deemed to be "contract rights" and continue after a person ceases to be
a director or officer or after rescission or modification of the By-Laws with
respect to prior occurring events. They also provide directors and officers with
the benefit of any additional indemnification which may be permitted by later
amendment to the B.C.L. The By-Laws further provide for advancement of expenses
and specify procedures in seeking and obtaining indemnification. Reference is
made to Article VI of BFG's By-Laws filed as Exhibit 3(b) to BFG's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1988.
BFG has insurance to indemnify its directors and officers, within the
limits of BFG's insurance policies, for those liabilities in respect of which
such indemnification insurance is permitted under the laws of the State of New
York.
Reference is made to Sections 721 through 726 of the B.C.L., which are
summarized below.
Section 721 of the B.C.L. provides that indemnification pursuant to the
B.C.L. shall not be deemed exclusive of other indemnification rights to which a
director or officer may be entitled, provided that no
II-1
<PAGE> 35
indemnification may be made if a judgment or other final adjudication adverse to
the director or officer establishes that (i) his acts were committed in bad
faith or were the result of active and deliberate dishonesty, and, in either
case, were material to the cause of action so adjudicated, or (ii) he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled.
Section 722(a) of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any civil or
criminal action, other than a derivative action, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein, if
such director or officer acted in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation and, in criminal actions
or proceedings, in addition, had no reasonable cause to believe that his conduct
was unlawful. With respect to derivative actions, Section 722(c) of the B.C.L.
provides that a director or officer may be indemnified only against amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense or settlement of such
action, or any appeal therein, if such director or officer acted in good faith,
for a purpose which he reasonably believed to be in the best interests of the
corporation and that no indemnification shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and to the extent an appropriate
court determines that the person is fairly and reasonably entitled to partial or
full indemnification.
Section 723 of the B.C.L. specifies the manner in which payment of such
indemnification may be authorized by the corporation. It provides that
indemnification by a corporation is mandatory in any case in which the director
or officer has been successful, whether on the merits or otherwise, in defending
an action. In the event that the director or officer has not been successful or
the action is settled, indemnification may be made by the corporation only if
authorized by any of the corporate actions set forth in such Section 723 (unless
the corporation has provided for indemnification in some other manner as
otherwise permitted by Section 721 of the B.C.L.).
Section 724 of the B.C.L. provides that upon proper application by a
director or officer, indemnification shall be awarded by a court to the extent
authorized under Sections 722 and 723 of the B.C.L. Section 725 of the B.C.L.
contains certain other miscellaneous provisions affecting the indemnification of
directors and officers, including provision for the return of amounts paid as
indemnification if any such person is ultimately found not to be entitled
thereto.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in instances in which they may not otherwise be indemnified by a corporation
under such sections, provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the New York State
Superintendent of Insurance, for a retention amount and for co-insurance.
In the Trust Agreement, BFG has agreed to indemnify the Trustees for, and
to hold the Trustees harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the Trust Agreement, 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.
II-2
<PAGE> 36
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement
4.1 Certificate of Trust of BFGoodrich Capital
4.2 Form of Amended and Restated Trust Agreement
4.3 Form of Indenture among BFG, the Issuer and The Bank of New York, as Debenture
Trustee
4.4 Form of Preferred Security (included in Exhibit 4.2)
4.5 Form of Junior Subordinated Debenture (included in Exhibit 4.3)
4.6 Form of Guarantee by BFG and The Bank of New York, as Guarantee Trustee
*5.1 Opinion of White & Case re validity of Preferred Securities
*5.2 Opinion of Nicholas J. Calise, Esq., Vice President, Associate General Counsel
and Secretary of BFG, re validity of Guarantee and Junior Subordinated
Debentures
*8.1 Opinion of White & Case re tax matters
12.1 Computation of Ratios of Earnings to Fixed Charges
12.2 Computation of Ratios of Earnings to Fixed Charges and Preferred Dividends
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of White & Case (included in Exhibit 5.1 above)
23.3 Consent of Nicholas J. Calise, Esq. (included in Exhibit 5.2 above)
23.4 Consent of White & Case (included in Exhibit 8.1 above)
24.1 Power of Attorney of BFG
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Debenture Trustee under the Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee under the Trust Agreement of the Issuer
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Guarantee Trustee under the Guarantee
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
The undersigned Registrant, The B.F.Goodrich Company, hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933
(the "Act"), each filing of such registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
of the Registrants pursuant to the provisions described under Item 15 above, or
otherwise, each of the Registrants has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
either of the Registrants of expenses incurred or paid by a director, officer or
controlling person of such Registrant in the successful defense of an action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, each of the Registrants
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 37
Each of the undersigned registrants hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-4
<PAGE> 38
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
B.F.GOODRICH COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON JUNE 5, 1995.
THE B.F.GOODRICH COMPANY
By: /s/ N. J. CALISE
----------------------------------
Nicholas J. Calise
Vice President, Associate General
Counsel and Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW ON JUNE 5, 1995 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
<TABLE>
<S> <C>
*STEVEN G. ROLLS *JEANETTE GRASSELLI BROWN
- --------------------------------------------- ---------------------------------------------
(STEVEN G. ROLLS) (JEANNETTE GRASSELLI BROWN)
Vice President and Controller Director
(Principal Accounting Officer)
*GEORGE A. DAVIDSON, JR. *JAMES J. GLASSER
- --------------------------------------------- ---------------------------------------------
(GEORGE A. DAVIDSON, JR.) (JAMES J. GLASSER)
Director Director
*THOMAS H. O'LEARY *JOHN D. ONG
- --------------------------------------------- ---------------------------------------------
(THOMAS H. O'LEARY) (JOHN D. ONG)
Director Chairman of the Board, President,
Chief Executive Officer and Director
(Principal Executive Officer)
*JOSEPH A. PICHLER *ALFRED M. RANKIN, JR.
- --------------------------------------------- ---------------------------------------------
(JOSEPH A. PICHLER) (ALFRED M. RANKIN, JR.)
Director Director
*IAN M. ROSS *D. LEE TOBLER
- --------------------------------------------- ---------------------------------------------
(IAN M. ROSS) (D. LEE TOBLER)
Director Executive Vice President and Director
(Principal Financial Officer)
*WILLIAM L. WALLACE
- --------------------------------------------- ---------------------------------------------
(WILLIAM L. WALLACE) (JOHN L. WEINBERG)
Director Director
*A. THOMAS YOUNG
- ---------------------------------------------
(A. THOMAS YOUNG)
Director
</TABLE>
*By /s/ N. J. CALISE
------------------------------------------
NICHOLAS J. CALISE,
Attorney-in-Fact
II-5
<PAGE> 39
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, BFGOODRICH
CAPITAL CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON JUNE , 1995.
BFGOODRICH CAPITAL
By: THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
II-6
<PAGE> 40
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
4.1 Certificate of Trust of BFGoodrich Capital
4.2 Form of Amended and Restated Trust Agreement
4.3 Form of Indenture among BFG, the Issuer and The Bank of New York, as Debenture
Trustee
4.4 Form of Preferred Security (included in Exhibit 4.2)
4.5 Form of Junior Subordinated Debenture (included in Exhibit 4.3)
4.6 Form of Guarantee by BFG and The Bank of New York, as Guarantee Trustee
*5.1 Opinion of White & Case re validity of Preferred Securities
*5.2 Opinion of Nicholas J. Calise, Esq., Vice President, Associate General Counsel
and Secretary of BFG, re validity of Guarantee and Junior Subordinated
Debentures
*8.1 Opinion of White & Case re tax matters
12.1 Computation of Ratios of Earnings to Fixed Charges
12.2 Computation of Ratios of Earnings to Fixed Charges and Preferred Dividends
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of White & Case (included in Exhibit 5.1 above)
23.3 Consent of Nicholas J. Calise, Esq. (included in Exhibit 5.2 above)
23.4 Consent of White & Case (included in Exhibit 8.1 above)
24.1 Power of Attorney of BFG
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Debenture Trustee under the Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee under the Trust Agreement of the Issuer
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Guarantee Trustee under the Guarantee
</TABLE>
- ---------------
* To be filed by amendment.
II-7
<PAGE> 1
Exhibit 1.1
Draft of May 31, 1995
BFGOODRICH CAPITAL
___% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A ("QUIPS")
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED BY
THE B.F.GOODRICH COMPANY
Underwriting Agreement
, 1995
Goldman, Sachs & Co.,
As representatives of the several Underwriters
named in Schedule I hereto,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
BFGoodrich Capital, a trust formed under the laws of the State of
Delaware (the "Trust") and The B.F.Goodrich Company, a New York corporation, as
depositor of the Trust and as guarantor (the "Guarantor"), propose subject to
the terms and conditions stated herein, that the Trust issue and sell to the
Underwriters named in Schedule 1 hereto (the "Underwriters"), an aggregate of
4,400,000 preferred securities (the "Securities") of ____% Cumulative Quarterly
Income Preferred Securities, Series A (liquidation preference $25 per preferred
security) representing undivided beneficial interests in the assets of the
Trust, guaranteed by the Guarantor as to the payment of distributions, and as
to payments on liquidation or redemption, to the extent set forth in a
guarantee agreement (the "Guarantee") between the Guarantor and _____________,
as trustee (the "Guarantee Trustee"). The proceeds of the sale of the
Securities by the Trust are to be invested in Junior Subordinated Debentures
(the "Subordinated Debentures") of the Guarantor, to be issued pursuant to an
Indenture (the "Indenture") between the Guarantor and ____________, as trustee
(the "Debenture Trustee").
1. Each of the Trust and the Guarantor jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File Nos.
33-.....and 33 ....-01) in respect of the Securities and the Guarantee
(collectively, the "Registered Securities") has been filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, to you for each of the other Underwriters, have
been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or thereafter filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all
exhibits thereto and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the registration
statement
<PAGE> 2
at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Guarantor
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust or the Guarantor by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Guarantor by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this
2
<PAGE> 3
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Trust or the Guarantor by an Underwriter
through Goldman, Sachs & Co. expressly for use therein;
(e) Neither the Trust nor the Guarantor and its subsidiaries
considered as a whole has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock or long-term debt
of the Guarantor and its subsidiaries considered as a whole or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, or security holders' equity of the
Trust or the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries considered as a whole, otherwise than as set forth in or
contemplated by the Prospectus;
(f) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware "Business Trust Act") with
the power and authority to own property and conduct its business as
described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and as described in the Prospectus; the Trust is not a party to or
bound by any agreement or instrument other than the Trust Agreement;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and described
in the Prospectus; the Trust is not and will not be classified as an
association taxable as a corporation for United States federal income
tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(g) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts
any business in an amount that is material to the business of the
Guarantor and its consolidated subsidiaries considered as a whole so
as to require such qualification; each Material Subsidiary (as defined
below) of the Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified as a foreign
corporation for the transaction of business and in good standing under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification (as used in this Agreement, the term "Material
Subsidiary" means a subsidiary of the Guarantor which is a significant
subsidiary under Rule 1-02 of Regulation S-X of the Commission);
(h) The Guarantor has an authorized capitalization as set
forth in the Prospectus; since such date there has been no change in
the consolidated capitalization of the Guarantor and its subsidiaries;
and all of the outstanding undivided beneficial interests of the Trust
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in
the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned
3
<PAGE> 4
directly or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities and claims; encumbrances, equities and claims;
(i) The Securities have been duly and validly authorized by
the Trust, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Securities is not subject to
preemptive or other similar rights; the Securities will have the
rights set forth in the Trust Agreement, and the terms of the
Securities are valid and binding on the Trust; the Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit;
(j) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the
Guarantor against payment therefor as described in the Prospectus,
will be duly and validly issued and fully paid and non- assessable
undivided beneficial interests in the assets of the Trust and will
conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or
other similar rights; and at the Time of Delivery, all of the issued
and outstanding Common Securities of the Trust will be directly owned
by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(k) The Guarantee, the Subordinated Debentures, the Trust
Agreement and the Indenture (the Guarantee, the Subordinated
Debentures, the Trust Agreement and the Indenture being collectively
referred to as the "Guarantor Agreements") have each been duly
authorized and when validly executed and delivered by the Guarantor
and, in the case of the Guarantee, by the Guarantee Trustee, in the
case of the Trust Agreement, by the Trust and, in the case of the
Indenture, by the Trust and the Debenture Trustee,will constitute
valid and legally binding obligations of the Guarantor, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Subordinated Debentures are entitled to the benefits of the Indenture;
and the Guarantor Agreements conform to the descriptions thereof in
the Preliminary Prospectus and will conform to the descriptions
thereof in the Prospectus;
(l) The issue and sale of the Securities by the Trust, the
compliance by the Trust with all of the provisions of this Agreement,
the purchase of the Subordinated Debentures by the Trust, and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Trust is
a party or by which the Trust is bound or to which any of the property
or assets of the Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities by the Trust, the
purchase of the Subordinated Debentures by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement, except the registration under the Act of the Registered
Securities and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase of the Securities and the
distribution of the Securities by the Underwriters;
4
<PAGE> 5
(m) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement, the execution, delivery and performance by the Guarantor of
the Guarantor Agreements, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Guarantor
or any of its Material Subsidiaries is a party or by which the
Guarantor or any of its Material Subsidiaries is bound or to which any
of the property or assets of the Guarantor or any of its Material
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or by-laws of
the Guarantor or the charter or by-laws of any of its Material
Subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor or any of its Material Subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue of the Guarantee
or the consummation by the Guarantor of the other transactions
contemplated by this Agreement, except the registration under the Act
of the Registered Securities and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase of the Securities and distribution of the Securities by the
Underwriters;
(n) Neither the Trust, the Guarantor nor any of the
Guarantor's Material Subsidiaries is in violation of its
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(o) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities", "Description of
the Guarantee" and "Description of the Junior Subordinated
Debentures", insofar as they purport to constitute a summary of the
terms of the securities therein described, under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, and under the caption
"Taxation" are accurate, complete and fair;
(p) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Guarantor or
any of the Guarantor's subsidiaries is a party or of which any
property of the Guarantor or any of the Guarantor's subsidiaries is
the subject, other than litigation which, in the opinion of the
Guarantor will not individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Guarantor and its subsidiaries considered as a whole, and, to the best
of the Guarantor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Neither the Trust nor the Guarantor is, and after giving
effect to the offering and sale of the Securities, neither the Trust
nor the Guarantor will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Trust Act of 1940, as amended (the "Investment Company
Act");
(r) Neither the Trust, the Guarantor nor any of the
Guarantor's affiliates does business with the Government of Cuba or
with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statues;
(s) There are no contracts, agreements or understandings
between the Trust or the Guarantor and any person that grant such
person the right to require the Trust or the
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Guarantor to file a registration statement under the Act with respect
to any undivided beneficial interests of the Trust or any capital
stock of the Guarantor owned or to be owned by such person or to
require the Trust or the Guarantor 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 Trust or the Guarantor under the Act; and
(t) Ernst & Young, who have certified certain financial
statements of the Trust, the Guarantor and the Guarantor's
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Trust and the Guarantor agree that the Trust shall issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase, at a purchase price of $..... per preferred security, the
number of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Subordinated Debentures of the Guarantor, the
Guarantor hereby agrees to pay at that Time of Delivery (as defined in Section
4 hereof) to Goldman, Sachs & Co., for the accounts of the several
Underwriters, an amount equal to $..... per share for the Securities to be
delivered at that Time of Delivery, provided, however, that such compensation
will be $..... per preferred security sold to certain institutions.
3. Upon the authorization by you of the release of the Securities,
the several Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours'
prior notice to the Trust, shall be delivered by or on behalf of the Trust to
Goldman, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by certified or official
bank check or checks, payable to the order of the Trust in New York Clearing
House (next day) funds. The Trust will cause the certificates representing the
Securities to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York time, on , 1995 or such
other time and date as Goldman, Sachs & Co. and the Trust may agree upon in
writing.
At the Time of Delivery, the Trust will pay, or cause to be paid, the
commission payable to the Underwriters under Section 2 hereof by certified or
official bank check or checks, payable to the order of Goldman, Sachs & Co. in
New York Clearing House (next day) funds.
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof; and the check or checks specified
in subsection (a) above, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and
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<PAGE> 7
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Trust and the Guarantor jointly and severally agree with each
of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you 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 you with copies
thereof; in the case of the Guarantor, to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Guarantor 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 Securities; to advise
you, 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 prospectus, of the suspension
of the qualification of the Registered Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Registered Securities or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Registered Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities, provided
that in connection therewith neither the Trust nor the Guarantor shall
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus, in
New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, to notify you and
upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in
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<PAGE> 8
connection with sales of any of the Securities at any time nine months
or more after the date of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) In the case of the Guarantor, to make generally available
to its securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Guarantor and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including at the option of the Guarantor,
Rule 158 under the Act);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the date, after the
Time of Delivery, on which the distribution of the Preferred
Securities ceases, as determined by you, and (ii) [90] days after the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities, any other beneficial interests of the
Trust, or any preferred securities or any other securities of the
Trust or the Guarantor, as the case may be, that are substantially
similar to the Securities, including the Guarantee, or any securities
that are convertible into or exchangeable for, or that represent the
right to receive securities, preferred securities or any such
substantially similar securities of either the Trust or BFG;
(f) To furnish to the holders of Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Guarantor and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Guarantor and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to holders of
capital stock of the Guarantor, and to deliver to you (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Trust or the
Guarantor is listed; and (ii) such additional information concerning
the business and financial condition of the Trust as you may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Trust and the
Guarantor and its subsidiaries are consolidated in reports furnished
to their securityholders generally or to the Commission);
(h) In the case of the Guarantor, to issue the Guarantee
concurrently with the issue and sale of the Securities as contemplated
herein;
(i) To use the net proceeds received by it from the sale of
the Securities, in the case of the Trust, and the Subordinated
Debentures, in the case of the Guarantor,pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(j) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters
that it will pay the following: (i) the fees, disbursements and expenses of the
Trust's and the Guarantor's counsel and
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accountants in connection with the registration of the Registered Securities
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement, the
Indenture, the Legal Investment and Blue Sky Memoranda, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Registered Securities; (iii) all
expenses in connection with the qualification of the Registered Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Legal Investment
and Blue Sky surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost and charges of the transfer agent or
registrar; (vii) the cost of qualifying the Securities with The Depository
Trust Company; (viii) all fees and expenses of the Debenture Trustee and its
counsel; (ix) all fees and expenses in connection with the listing of the
Securities on the New York Stock Exchange and the cost of registering the
Securities under Section 12 of the Exchange Act; (x) the cost of preparing
certificates for the Securities and the Subordinated Debentures; and (xi) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, Section 8
and Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale
of any of the Securities by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder, as to the
Securities to be delivered at the Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Trust and the Guarantor herein are, at and as of the Time of
Delivery, true and correct, the condition that the Trust and the Guarantor
shall have performed all of their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated the Time of
Delivery, with respect to: the incorporation of the Guarantor and the
formation of the Trust; insofar as the federal laws of the United
States, the laws of the State of New York or the State of Delaware are
concerned, the validity of the Registered Securities and the
Subordinated Debentures; the Registration Statement and the
Prospectus; and other related matters as you may reasonably request;
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Nicholas J. Calise, Esq., Vice President, Associate
General Counsel and Secretary of the Guarantor, shall have furnished
to you his written opinion ( a draft of each such opinion is attached
as Annex II(b) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
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(i) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority
to own property and conduct its business as described in the
prospectus; the Trust is not a party to or bound by any
agreement or instrument other than the Trust Agreement and the
Indenture; and to the best of such counsel's knowledge, there
are no legal or governmental proceedings to which the Trust is
a party or of which any property of the Trust is the subject
and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iii) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the outstanding undivided
beneficial interests of the Trust have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform in all material respects to the descriptions thereof
contained in the Prospectus;
(iv) The Guarantor Agreements have each been duly
authorized, executed and delivered by the Guarantor and such
Agreements constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the
Subordinated Debentures are entitled to the benefits provided
by the Indenture; and the Guarantor Agreements conform in all
material respects to the descriptions thereof in the
Prospectus;
(v) The Securities have been duly and validly authorized
by the Trust, and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus; the
Securities have the rights set forth in the Trust Agreement
and the terms of the Securities are valid and binding on the
Trust;
(vi) The Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in the United
States other than New York in which it owns or leases plants
or other major real property (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Guarantor, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(vii) Each Material Subsidiary of the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; all of the issued shares of capital stock of
each such Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly
or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims;
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(viii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the
Guarantor or any of its subsidiaries is a party or of which
any property of the Guarantor or any of its subsidiaries is
the subject, other than as set forth in the Prospectus and
other than litigation which in the aggregate is not material
to the Guarantor and its subsidiaries considered as a whole;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Guarantor;
(x) The issue and sale by the Trust of the Securities
being delivered at such Time of Delivery, the compliance by
the Trust with all of the provisions of this Agreement, the
purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the
Indenture and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of
the provisions of the Trust Agreement or certificate of trust
of the Trust or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Trust or any of its
properties;
(xi) The issuance by the Guarantor of the Guarantee and
the Subordinated Debentures, the compliance by the Guarantor
with all of the provisions of this Agreement, the execution,
delivery and performance by the Guarantor of the Guarantor
Agreements and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Guarantor or any of its Material
Subsidiaries is a party or by which the Guarantor or any of
its Material Subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its Material
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Guarantor's Certificate of
Incorporation or by-laws or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Guarantor or any
of its Material Subsidiaries or any of their properties;
(xii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities by the Trust, the purchase by the Trust of
the Subordinated Debentures or the consummation by the Trust
of the transactions contemplated by this Agreement, except the
registration under the Act of the Registered Securities, and
such consents, approvals, authorizations, registrations or
qualifications as have been obtained or may be required under
state securities or Blue Sky laws in connection with the
purchase of the Securities and the distribution of the
Securities by the Underwriters;
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue of the
Guarantee or the consummation by the Guarantor of the
transactions contemplated herein and in the Guarantor
Agreements, except the registration under the Act of the
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Registered Securities, and such consents, approvals,
authorizations, registrations or qualifications as have been
obtained or may be required under state securities or Blue Sky
laws in connection with the purchase of the Securities and the
distribution of the Securities by the Underwriters;
(xiv) Neither the Trust, the Guarantor nor any of the
Guarantor's Material Subsidiaries is in violation of its
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound;
(xv) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities",
"Description of the Guarantee" and "Description of the Junior
Subordinated Debentures", insofar as they purport to
constitute a summary of the terms of the securities therein
described, and under the caption "Underwriting", insofar as it
purports to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xvi) Neither the Trust nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company"
required to be registered under the Investment Company Act;
and
(xvii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Trust or the Guarantor prior to the Time of Delivery
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any
of such documents, when such documents became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of
other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading;
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside the
United States.
(d) White & Case, special counsel for the Trust and the
Guarantor, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(c) hereto), dated the Time of
Delivery, in form and substance satisfactory to you, to the same
effect as the opinions set forth in paragraphs (ii), (iv), (v), (xv)
and (xvi) of Section 7(c) of this Agreement and to the effect that:
(i) The statements made in the Prospectus under the
caption "Taxation", to the extent they constitute matters of
law or legal conclusions, have been reviewed by such counsel
and are accurate, correct and fairly present the information
set forth therein; and
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(ii) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Trust or the Guarantor prior to the Time of Delivery (other
than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act
and the rules and regulations thereunder; although 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 those
referred to in the opinions in Subsection (xv) of Section 7(c)
and Subsection (i) of Section 7(d), such counsel has no reason
to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Trust or
the Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Trust prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, as of the Time of Delivery either the Registration
Statement or the Prospectus or any further amendment or
supplement thereto made by the Trust or the Guarantor prior to
such Time of Delivery (other than the financial statements and
related schedules and other financial data therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
such counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in
the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may state that their opinion
is limited to the laws of the State of New York, federal law and the trust law
of the State of Delaware.
(e) , special Delaware Counsel to the Trust
and the Guarantor, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(d) hereto), dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that
[to be supplied]
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, Ernst & Young shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto; (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto).
13
<PAGE> 14
(g) The Trust Agreement, the Guarantee and the Indenture shall have
been executed and delivered, in each case in a form reasonably satisfactory to
you;
(h) (i) Neither the Trust nor the Guarantor and its subsidiaries
considered as a whole shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock or long-term debt of the Guarantor and its subsidiaries
considered as a whole or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position or
of the Trust or the general affairs, management, consolidated financial
position, stockholders' equity or results of operations of the Guarantor and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in Clause (i) or (ii), is in your judgment so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering of the
Securities or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Securities or any of the Guarantor's debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Guarantor's debt
securities or preferred stock;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Guarantor's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering of the Securities or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(k) The Securities to be sold by the Trust at the Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange; and
(l) The Trust and the Guarantor shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of the
Guarantor and the Trust satisfactory to you, as to the accuracy of the
representations and warranties of the Trust and the Guarantor herein at and as
of such Time of Delivery, as to the performance by the Trust and the Guarantor
of all of their obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and (g) of this
Section and as to such other matters as you may reasonably request.
(m) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
14
<PAGE> 15
8. (a) The Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Trust nor the Guarantor shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Trust or the Guarantor by
any Underwriter through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Trust and the
Guarantor against any losses, claims, damages or liabilities to which the Trust
or the Guarantor may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Trust or the Guarantor by
such Underwriter through Goldman, Sachs & Co. expressly for use therein; and
will reimburse the Trust and the Guarantor for any legal or other expenses
reasonably incurred by the Trust or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and
15
<PAGE> 16
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Guarantor on the one hand and
the Underwriters on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust and the Guarantor on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Trust and the Guarantor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as (i) the total proceeds from the
offering (before deducting expenses) received by the Trust less the total
underwriting compensation paid by the Guarantor bear to (ii) the total
underwriting compensation received by the Underwriters, in each case as set
forth in, or in footnotes to, the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust and the Guarantor on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, the Guarantor and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Trust and the Guarantor under this
Section 8 shall be in addition to any liability which the Trust and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Trust or the Guarantor and to each person, if any,
who controls the Trust or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after
16
<PAGE> 17
such default by any Underwriter you do not arrange for the purchase of such
Securities, then the Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Trust and
the Guarantor that you have so arranged for the purchase of such Securities, or
the Trust or the Guarantor notifies you that it has so arranged for the
purchase of such Securities, you or the Trust and the Guarantor shall have the
right to postpone the Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Trust and the Guarantor agree to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Trust and
the Guarantor as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery,
then the Trust and the Guarantor shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Trust and
the Guarantor as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Securities to be purchased at such Time of Delivery, or if the
Trust and the Guarantor shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter, the
Trust or the Guarantor, except for the expenses to be borne by the Trust, the
Guarantor and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Trust, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Trust, the Guarantor or any officer or director or
controlling person of the Trust or the Guarantor, and shall survive delivery of
and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Trust nor the Guarantor shall then be under any liability to
any Underwriter except as provided in Section 6 and Section 8 hereof; but if,
for any other reason, Securities are not delivered by or on behalf of the Trust
as provided herein, the Trust and the Guarantor will reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Trust and the Guarantor shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Section 6 and Section 8 hereof.
17
<PAGE> 18
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Trust or the Guarantor by mail to it at the address of
the Trust or the Guarantor set forth in the Registration Statement, Attention:
Secretary; provided, however that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Trust and the Guarantor by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Trust, the Guarantor and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the
Guarantor or the Trust and each person who controls the Trust, the Guarantor or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters, on
the one hand, and the Trust and the Guarantor, on the other. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Trust
18
<PAGE> 19
and the Guarantor for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
B.F.Goodrich Trust
By , Trustee
By:____________________________
Name and Title:
The BFGoodrich Capital
By:____________________________
Name and Title:
Accepted as of the date hereof:
_____________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
19
<PAGE> 20
SCHEDULE I
<TABLE>
<CAPTION>
Total Number of
Securities
Underwriter to be Purchased
----------- ---------------
<S> <C>
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,400,000
=========
</TABLE>
20
<PAGE> 21
ANNEX I
[Form of letter of Ernst & Young
to be delivered pursuant to Section 7(e)]
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Guarantor for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the representatives
of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Guarantor's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representatives and on the basis of
specified procedures including inquiries of officials of the Guarantor
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Guarantor's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused
21
<PAGE> 22
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302 and 503(d)
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Guarantor and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or incorporated by reference in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations
or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated
balance sheet and consolidated statements of cash flows
included in the Prospectus or included in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus), or any
increase in the consolidated long-term debt of the Guarantor
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases
22
<PAGE> 23
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenue or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period in the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii), (iv), (v) and (vi) above,
they have carried out certain specified procedures, not constituting
an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from
the general accounting records of the Guarantor and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Guarantor and its subsidiaries and have found them to be in
agreement.
All references in this Annex I to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Underwriting Agreement and to the Prospectus as
amended or supplemented (including all documents incorporated by reference
therein) for the purposes of the letter delivered either (i) on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of the Underwriting Agreement or (ii) at each Time of
Delivery, as the case may be.
23
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF TRUST
OF
BFGOODRICH CAPITAL
THIS CERTIFICATE OF TRUST of BFGoodrich Capital (the "Trust"), dated
May 31, 1995 is being duly executed and filed by the undersigned, as trustees,
to form a business trust under the Delaware Business Trust Act (12 Del. Code
Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is BF
Goodrich Capital.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, has executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Joseph F. Leary
___________________________________
Name: Joseph F. Leary
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Mary Jane Morrissey
___________________________________
Name: Mary Jane Morrissey
Title: Assistant Vice President
<PAGE> 1
Exhibit 4.2
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AMENDED AND RESTATED
TRUST AGREEMENT
between
THE B.F.GOODRICH COMPANY, as Depositor
and
THE BANK OF NEW YORK
and
THE BANK OF NEW YORK (DELAWARE), as Trustees
Dated as of _________ __, 1995
BFGOODRICH CAPITAL
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<PAGE> 2
BFGoodrich Capital
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
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<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 10.10
</TABLE>
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Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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ARTICLE I.
Defined Terms
<S> <C>
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Office of the Delaware Trustee; Principal Place of Business . . . . . . . . . . . . 10
Section 2.03. Initial Contribution of Trust Property; Organizational Expenses . . . . . . . . . . 10
Section 2.04. Issuance of the Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.05. Subscription and Purchase of Debentures; Issuance of the Common Securities . . . . 11
Section 2.06. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.07. Authorization to Enter into Certain Transactions . . . . . . . . . . . . . . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.09. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.03. Subordination of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<TABLE>
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ARTICLE V.
Trust Securities Certificates
<S> <C>
Section 5.01. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02. The Trust Securities Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.03. Authentication of Trust Securities Certificates . . . . . . . . . . . . . . . . . . 20
Section 5.04. Registration of Transfer and Exchange of Preferred Securities Certificates . . . . 20
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates . . . . . . . . 21
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.07. Access to List of Securityholders' Names and Addresses . . . . . . . . . . . . . . 22
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor . . . . . . . . . . . . . . . . . . . . 23
Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificate . . . . 24
Section 5.12 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.13. Definitive Preferred Securities Certificates . . . . . . . . . . . . . . . . . . . 25
Section 5.14. Rights of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.03. Meetings of Preferred Securityholders . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.06. Securityholder Action by Written Consent . . . . . . . . . . . . . . . . . . . . . 29
Section 6.07. Record Date for Voting and Other Purposes . . . . . . . . . . . . . . . . . . . . . 29
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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<TABLE>
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<S> <C>
ARTICLE VII.
Representations and Warranties
of the Bank and the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.04. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . 36
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 8.06. Compensation; Fees; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 8.07. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . 36
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . 39
Section 8.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . 41
Section 8.13. Preferential Collection of Claims Against Depositor or Trust . . . . . . . . . . . 42
Section 8.14. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
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<TABLE>
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ARTICLE X.
Miscellaneous Provisions
<S> <C>
Section 10.01. Guarantee by the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 10.02. Limitation of Rights of Securityholders . . . . . . . . . . . . . . . . . . . . . . 45
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.04. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.05. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.10. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
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Draft of June 1, 1995
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________
__, 1995, between The B.F.Goodrich Company, a New York corporation (the
"Depositor" or "BFG"), and The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (the "Trustee"
and, in its separate corporate capacity and not in its capacity as Trustee, the
"Bank") and The Bank of New York (Delaware), a banking corporation duly
organized under the laws of Delaware, as Delaware trustee (the "Delaware
Trustee") (the Trustee and the Delaware Trustee referred to collectively as the
"Trustees").
WITNESSETH:
WHEREAS, the Depositor, the Bank and the Delaware Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of ____________, 1995 (the "Original Trust Agreement"), and
by the execution and filing by the Trustees with the Secretary of State of the
State of Delaware of the Certificate of Trust, dated ______________, 1995,
attached as Exhibit A; and
WHEREAS, the Depositor, the Bank and the Delaware Trustee
desire to amend and restate the Original Trust Agreement in its entirety as set
forth herein to provide for, among other things, (i) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures, (ii) the issuance of the Common Securities by the Trust to the
Depositor and (iii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.01. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
<PAGE> 8
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article
or a Section, as the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as
a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor on a
Like Amount of Debentures for such period.
"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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui-
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dator, assignee, trustee sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under Federal bankruptcy law or any other applicable Federal
or State law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Book Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (z) a day on which the
Trustee's Corporate Trust Office or the Debenture Trustee's principal corporate
trust office is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust
Certificates, sub-
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stantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the First Time of Delivery as defined in
the Underwriting Agreement, which date is also the date of execution and
delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an ownership interest in the Trust
having a Liquidation Amount of $25 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the
Trustee located in New York, New York.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as defined
in the Subordinated Indenture.
"Debenture Trustee" means The Bank of New York.
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"Debentures" means the $113,402,075 aggregate principal amount
(or up to $130,412,375 aggregate principal amount if and to the extent the
overallotment option granted by the Trust to the underwriters of the Preferred
Securities is exercised) of BFG's ___% Junior Subordinated Debentures, Series A,
Due 2025, issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement and includes The B.F.Goodrich Company in its capacity as Holder
of the Common Securities.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
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(iii) default by the Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustee in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is dealt with in
clause (ii) or (iii), above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Trustee by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities 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
(v) the occurrence of a Bankruptcy Event with respect to the
Trustee.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between BFG and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Guarantee" means the Guarantee Agreement executed and
delivered by BFG and The Bank of New York, a New York banking corporation, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Preferred Securityholders, as amended from
time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
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"Liquidation Date" means the Date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section
9.04.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustee or the Depositor, but not an employee
of the Trust or the Trustee, and who shall be reasonably acceptable to the
Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Securities which have been paid pursuant to
Section 5.05 or in exchange for or in lieu of which other Preferred
Securities have been authenticated and delivered pursuant to this Trust
Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Trustee or any Affiliate of the
Depositor or the Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which the Trustee knows to be so owned
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shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Preferred Securities are owned by the Depositor, the
Trustee and/or any such Affiliate. Preferred 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 Preferred Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book
Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be BFG.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Trustee shall make
payments to the Securityholders in accordance with Section 4.01.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an ownership interest in the Trust
having a Liquidation Amount of $25 and having rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
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"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security,
plus accumulated and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register.
"Subordinated Indenture" means the Indenture, dated as of
_________ ___, 1995, between BFG and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Trust" means the Delaware business trust created hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Trust Agreement, as the same may
be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 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.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
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"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustee" means the commercial bank or trust company identified
as the "Trustee" in the preamble to this Trust Agreement solely in its capacity
as Trustee of the Trust formed hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of ____________, 1995, among the Trust, BFG and the underwriters named
therein.
ARTICLE II.
Establishment of the Trust
Section 2.01. Name. The Trust created hereby shall be known as
"BFGoodrich Capital", in which name the Trustee may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
Section 2.02. Office of the Delaware Trustee; Principal Place
of Business. The office of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711, or at such other address
in Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the Trust
is c/o the B.F.Goodrich Company, 3925 Embassy Parkway, Akron, Ohio 44333.
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. The Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $1,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of the
Trustee, promptly reimburse the Trustee for any such expenses paid by the
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04. Issuance of the Preferred Securities. On ______,
1995 the Trustee, on behalf of the Trust, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this
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Trust Agreement, the Trustee, on behalf of the Trust, shall execute and deliver
to the underwriters named therein Preferred Securities Certificates, registered
in the name of the nominee of the initial Clearing Agency, in an aggregate
amount of 4,400,000 Preferred Securities having an aggregate Liquidation Amount
of $110,000,000, against receipt of the aggregate purchase price of such
Preferred Securities of $110,000,000.
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Securities. Contemporaneously with the execution and delivery of
this Trust Agreement, the Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Debentures, registered in the name of the Trust
and having an aggregate principal amount equal to $113,402,075, and, in
satisfaction of the purchase price for such Debentures, the Trustee, on behalf
of the Trust, shall (i) execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
136,083 Common Securities having an aggregate Liquidation Amount of $3,402,075,
and (ii) deliver to the Depositor the sum of $113,402,075. If the overallotment
option contained in the Underwriting Agreement is exercised, on the Second Time
of Delivery as defined therein, the Trustee, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered in the name
of the Trust and having an aggregate principal amount equal to up to
$17,010,300, and, in satisfaction of the purchase price for such Debentures, the
Trustee, on behalf of the Trust, shall (i) execute and deliver to the Depositor
Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of up to 156,495 Common Securities having an aggregate
Liquidation Amount of $3,912,375, and (ii) deliver to the Depositor the sum of
up to $17,010,300.
Section 2.06. Declaration of Trust. The Depositor hereby
appoints the Trustees as trustees of the Trust, to have all the rights, powers
and duties to the extent set forth herein. The Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Securityholders. The Trustee shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Trustee set forth herein.
The Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of the Delaware Business Trust
Act.
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Section 2.07. Authorization to Enter into Certain Transactions.
The Trustee shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in the last
paragraph of this Section, the Trustee shall have the authority to enter into
all transactions and agreements determined by the Trustee to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustee
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(a) the issuance and sale of the Trust Securities;
(b) the receipt of the Debentures;
(c) to cause the Trust to enter into the Underwriting Agreement
and the Certificate Depository Agreement and such other agreements as
may be necessary or desirable in connection with the consummation
hereof;
(d) the establishment of the Payment Account;
(e) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
(f) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(g) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or blue
sky laws, and the qualification of the Trust Agreement as a trust
indenture under this Trust Indenture Act;
(h) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(i) the sending of notices and other information regarding the
Trust Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
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(j) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(k) registering transfers of the Trust Securities in accordance
with this Trust Agreement;
(l) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(m) as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the Secretary of
State of Delaware; and
(n) the taking of any action incidental to the foregoing as the
Trustee may from time to time determine is necessary or advisable to
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action
on any particular Securityholder).
So long as this Trust Agreement remains in effect, the Trust
(or the Trustee acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as other than association taxable as a corporation for
United States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Trustee shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
Section 2.08. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Trustee (in its capacity as such)
and shall be held and
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administered by the Trustee for the benefit of the Securityholders in accordance
with this Trust Agreement.
ARTICLE III.
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Trustee shall
establish the Payment Account. The Trustee and any agent of the Trustee shall
have exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Trustee in the Payment Account for the exclusive benefit of the
Certificateholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Debentures. Amounts held in the Payment Account
shall not be invested by the Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from ____________,
1995, and, except in the event that BFG exercises its right to extend the
interest payment period for the Debentures pursuant to Section 301 of the
Subordinated Indenture, shall be payable quarterly in arrears on March 31, June
30, September 30 and December 31 of each year, commencing on _________ __, 1995.
If any date on which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution shall be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay)
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except that, if such Business Day is in the next succeeding calendar year,
payment of such distribution shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date (each
date on which distributions are payable in accordance with this Section 4.01(a)
a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly period
shall be computed on the basis of twelve 30-day months and a 360-day year. If
the interest payment period for the Debentures is extended pursuant to Section
301 of the Subordinated Indenture, then the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is equal to the
aggregate amount of interest (including interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded monthly) that accrues
during any such extended interest payment period on the Debentures. The amount
of Distributions payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that the
Trust has funds available in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-entry-
only form, the relevant record date shall be the date 15 days prior to the
relevant Distribution Date.
Section 4.02. Redemption. (a) On each Debenture Redemption
Date, the Trustee will be required to redeem a Like Amount of Trust Securities
at the Redemption Price.
(b) Notice of redemption shall be given by the Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at
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such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
interest thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the Payment Account for
the payment of such Redemption Price.
(d) If the Trust gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, New York time, on the Redemption
Date, subject to Section 4.02(c), the Trustee will, so long as the Preferred
Securities are in book- entry-only form, irrevocably deposit with the Clearing
Agency for the Preferred Securities funds sufficient to pay the applicable
Redemption Price and, at the direction of the Depositor, shall give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the holders thereof. If the Preferred Securities are no longer in
book-entry-only form, the Trustee, subject to Section 4.02(c), shall irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions to pay the
Redemption Price to the holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the redemption date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as
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required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but without interest,
and such Securities will cease to be outstanding. In the event that any date on
which any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one Business Day prior to the relevant Redemption Date; provided, however, that
in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the fifteenth day prior to the
Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and 97%
to the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for a redemption of portions (equal to $25
or integral multiple thereof) of the Liquidation Amount of Preferred Securities
of a denomination larger than $25. The Trustee shall promptly notify the
Security Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
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redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Section 4.03. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds
immediately available to the Trustee shall first be applied to the payment in
full in cash of all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of
Default, the Holder of Common Securities will be deemed to have waived any such
Event of Default under the Trust Agreement until the effect of all such Events
of Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under the Trust Agreement
with respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Trustee shall act solely on behalf of the Holders of the
Preferred Securities and not the Holder of the Common Securities, and only the
Holders of the Preferred Securities will have the right to direct the Trustee to
act on their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions
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shall be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Trustee and the Common Securityholder.
Section 4.05. Tax Returns and Reports. The Trustee shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the Trustee
shall (a) prepare and file (or cause to be prepared or filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Schedule K-1 (Form 1041), Beneficiary's Share
of Income, Deductions, Credits, Etc., or any successor form or the information
required to be provided on such form. The Trustee shall provide the Depositor
with a copy of all such returns, reports and schedules promptly after such
filing or furnishing. The Trustee shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.03 and until
the issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole owner of the Trust.
Section 5.02. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $1,000
Liquidation Amount and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been
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affixed, authorized to sign on behalf of the Trust, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03. Authentication of Trust Securities Certificates.
On the Closing Date and on any date on which Preferred Securities are required
to be delivered pursuant to the exercise of the overallotment option provided
for in the Underwriting Agreement, the Trustee shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its chairman of the board,
its president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit E
or C, as applicable, executed by the Trustee or The Bank of New York, as the
Trustee's authentication agent, by manual signature; such authentication shall
constitute conclusive evidence that such Trust Securities Certificate shall have
been duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication.
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar shall keep or cause
to be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and the Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Bank of New York shall be the initial Securities Registrar.
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Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Trustee shall execute, authenticate and deliver (or shall cause The
Bank of New York as its authenticating agent to authenticate and deliver), in
the name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the Trustee or any
authenticating agent. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Securities
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate shall
be surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Trustee on behalf of the Trust shall execute and the Trustee, or The Bank of New
York, as the Trustee's authenticating agent, shall authenticate and make
available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and
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denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Trustee or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustee or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustee nor
the Securities Registrar shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the Depositor,
within 15 days after receipt by the Trustee of a request therefor from the
Depositor in writing, a list, in such form as the Depositor may reasonably
require, of the names and addresses of the Securityholders as of the most recent
Record Date. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than 25% of the outstanding
Liquidation Amount apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate, shall be deemed
to have agreed not to hold either the Depositor or the Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.08. Maintenance of Office or Agency. The Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustee in respect of the Trust
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Securities Certificates may be served. The Trustee initially designates The Bank
of New York, 101 Barclay Street, 21 West, New York, New York 10286 as its
principal corporate trust office for such purposes. The Trustee shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
Section 5.09. Appointment of Paying Agent. The Paying Agent
shall make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Trustee. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the distributions referred to above. The Trustee may revoke
such power and remove the Paying Agent if the Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be BFG, and it may choose any co-paying agent that is acceptable to the Trustee
and the Depositor. BFG shall be permitted to resign as Paying Agent upon 30
days' written notice to the Trustee and the Depositor. In the event that BFG
shall no longer be the Paying Agent, the Trustee shall appoint a successor that
is acceptable to the Depositor to act as Paying Agent (which shall be a bank or
trust company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the Securityholders
entitled thereto until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Trustee also in its role as Paying Agent, for so long as the Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities shall
be void. The Trustee shall cause each
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Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate. (a) The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry Preferred
Securities Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Preferred
Securities Certificate or Certificates shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no beneficial owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's interest in such
Preferred Securities, except as provided in Section 5.13. Unless and until
Definitive Preferred Securities Certificates have been issued to beneficial
owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Preferred Securities Certificates
(including the payment of principal of and interest on the Book-Entry
Preferred Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole Holder of
Book-Entry Preferred Securities and shall have no obligations to the
Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control;
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Partici-
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pants and receive and transmit payments on the Preferred Securities to
such Clearing Agency Participants; and
(v) whenever this Trust Agreement requires or permits actions
to be taken based upon instructions or directions of Holders of Trust
Certificates evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions to
such effect from Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the applicable class of Trust Certificates and has
delivered such instructions to the Trustee.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice
or other communication to the Owners is required under this Trust Agreement,
unless and until Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustee shall give all such
notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates. If
(i) the Depositor advises the Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (iii) after the occurrence of a Debenture Event of Default, Owners of
Preferred Securities Certificates representing beneficial interests aggregating
at least a majority of the Liquidation Amount advise the Clearing Agency in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Owners of Preferred Securities
Certificates, then the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the Trustee of the occurrence of any such event and
of the availability of the Definitive Preferred Securities Certificates to
Owners of such class or classes, as applicable, requesting the same.
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Upon surrender to the Trustee of the typewritten Preferred Securities
Certificate or Certificates representing the Book Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration instructions,
the Trustee shall execute and authenticate the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar or the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustee shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Trustee, as evidenced by its execution thereof.
Section 5.14. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Trustee (in its capacity as such) in
accordance with Section 2.09, and the Securityholders shall not have any right
or title therein other than the ownership interest in the Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid and
nonassessable by the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights. (a) Except as
provided in this Section, in Section 10.02 and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Trustee, the
Trustee shall not (i) direct the time, method
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and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable under
Section 513 of the Subordinated Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Subordinated Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least
66 2/3% in Liquidation Amount of the Preferred Securities; provided, however,
that where a consent under the Subordinated Indenture would require the consent
of each holder of Debentures affected thereby, no such consent shall be given by
the Trustee without the prior written consent of each holder of Preferred
Securities. The Trustee shall not revoke any action previously authorized or
approved by a vote of the Preferred Securities, except pursuant to a subsequent
vote of the Preferred Securities. The Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the Trust will
not be classified as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustee otherwise proposes to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of outstanding
Preferred Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in Liquidation Amount of the
outstanding Preferred Securities. No amendment to this Trust Agreement may be
made if, as a result of such amendment, the Trust would be classified as an
association taxable as a corporation for United States federal income tax
purposes.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the
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Trustee pursuant to Section 10.08 to each Preferred Securityholder of record, at
his registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Any and all notice to which any Preferred Securityholder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Preferred
Securityholders of record at his last known address as recorded on the Security
Register.
Section 6.03 Meetings of Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Trustee, however, shall
call a meeting of Securityholders to vote on any matter upon the written request
of the Preferred Securityholders of record of 25% of the Preferred Securities
(based upon their Liquidation Amount) and may, at any time in its discretion,
call a meeting of Preferred Securityholders to vote on any matters as to the
which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66 2/3% of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, etc. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with
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the Trustee, or with such other officer or agent of the Trust as the Trustee may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Trustee, proxies may be solicited in the name of
the Trustee or one or more officers of the Trustee. Only Securityholders of
record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger.
Section 6.06. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than 66 2/3% of all outstanding Trust
Securities entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their Liquidation Amount).
Section 6.07. Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Trustee may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Such instrument or instruments (and the action embodied therein
and evidenced
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thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustee, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of every
Trust 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 Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
liquidation amount.
Section 6.09. Inspection of Records. Upon reasonable notice to
the Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
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ARTICLE VII.
Representations and Warranties of the Bank and the Trustee
The Bank and the Trustee, each on behalf of and as to itself,
hereby represent and warrant for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the
State of New York, and the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and
perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Bank and the
Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(d) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been, and any Trust Securities
Certificates to be issued at the time of exercise, if any, of the
overallotment option under the Underwriting Agreement will be, duly
authorized and will have been, as of each such date, duly and validly
executed, issued and delivered by the Trustee pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of each such date,
entitled to the benefits of this Trust Agreement;
(e) the execution, delivery and performance by each of the Bank
and the Delaware Trustee of this Trust Agreement and the issuance by
the Trustee of the Trust Securities pursuant to this Trust Agreement
have been duly authorized by all necessary corporate action on the part
of the Bank and the Trustee and the Delaware
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Trustee and do not require any approval of stockholders of the Bank and
such execution, delivery and performance will not (i) violate the
Bank's or the Delaware Trustee's Charter or By-laws, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which the Trustee or the Bank or the
Delaware Trustee is a party or by which it is bound, or (iii) violate
any law, governmental rule or regulation of the United States or the
State of New York or Delaware, as the case may be, governing the
banking or trust powers of the Bank and the Trustee or the Delaware
Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Trustee or the Bank or the Delaware Trustee;
(f) neither the authorization, execution or delivery by the
Bank or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Bank or the Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein or
therein nor the issuance of the Trust Securities Certificates pursuant
to this Trust Agreement require the consent or approval of, the giving
of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing
Federal law governing the banking or trust powers of the Trustee or the
Delaware Trustee or under the laws of the State of New York or
Delaware;
(g) there are no taxes, fees or other governmental charges
payable under the laws of the State of New York or Delaware or any
political subdivision thereof in connection with the execution and
delivery by the Bank or the Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement or in connection with the
issuance, execution, authentication and delivery of the Trust
Securities Certificates by the Trustee pursuant to this Trust
Agreement. Under existing law and assuming compliance with this Trust
Agreement, and assuming that the Trust will be classified for federal
income tax purposes as a grantor trust, or partnership, (i) neither the
Trust nor any of its assets will be subject to taxation by the State of
Delaware or any political subdivision or taxing authority thereof or
therein and (ii) a Securityholder that would not be subject to taxation
by the State of
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Delaware or any political subdivision or taxing authority thereof or
therein but for its ownership of a Certificate will not be subject to
such taxation as a result of such ownership; and
(h) there are no proceedings pending or, to the best of each of
the Trustee's and the Delaware Trustee's knowledge, threatened against
or affecting the Bank or the Trustee or the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would materially
and adversely affect the Trust or would question the right, power and
authority of the Bank or the Delaware Trustee to enter into or perform
its obligations as one of the Trustees under this Trust Agreement.
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be as
provided by this Trust Agreement and the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require the Trustee or
the Delaware Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
(b) All payments made by the Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Trustee to make payments in
accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustee is not personally liable to it
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for any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b) does not limit
the liability of the Trustee expressly set forth elsewhere in this Trust
Agreement or in the Trust Indenture Act.
Section 8.02. Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default, the Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of any default known
to the Trustee to the Securityholders and the Depositor, unless such default
shall have been cured or waived. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
Section 8.03. Certain Rights of Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate
of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Trustee is required to decide between
alternative courses of action or (B) in construing any
of the provisions in this Trust Agreement the Trustee
finds the same ambiguous or inconsistent with any
other provisions contained herein or (C) the Trustee
is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to
which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the
Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to
the course of action to be taken. The Trustee shall
take such action, or refrain from taking such action,
as the Trustee shall be instructed in writing to take,
or to refrain from taking, by the
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Depositor; provided, however, that if the Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of
the Securityholders, in which event the Trustee shall
have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) the Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization
and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and
in reliance thereon;
(iv) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(v) 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, consent, order,
approval, bond or other paper or document, unless
requested in writing to do so by one or more
Securityholders;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys,
provided that the Trustee shall be responsible for its
own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder.
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Section 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustee shall not be
accountable for the use or application by the Trust of the proceeds of the Trust
Securities in accordance with Section 2.05.
Section 8.05. May Hold Securities. The Trustee or any other
agent of the Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not Trustee or such other
agent.
Section 8.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any
provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this
Trust Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 8.07. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
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with respect to the Trust Securities. The Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 8.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Holder of the Common
Securities and the Trustee shall have power to appoint, and upon the written
request of the Trustee, the Depositor shall for such purpose join with the
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Trustee either to act as co-trustee, jointly with the Trustee, of all or any
part of such Trust Property, or to act as separate trustee of any such property,
in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Default under the Subordinated Indenture has occurred and is
continuing, the Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section shall satisfy
the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so
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appointed for more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(1) The Trust Securities shall be authenticated and delivered
and all rights, powers, duties, and obligations hereunder in respect of
the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised, solely by the Trustee.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such Act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(3) The Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case an Event of Default under
the Subordinated Indenture has occurred and is continuing, the Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Trustee, the Depositor shall
join with the Trustee in the execution, delivery, and performance of
all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
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(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder.
(5) The Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee or the Delaware Trustee (as
the case may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Relevant Trustee in accordance with
the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to the
Trust Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the resigning Relevant Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
Unless an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at such time by Act of the Securityholders
of a majority in Liquidation Amounts of the Preferred Securities Certificates,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Event of
Default shall have occurred and be continuing, the Common Securityholder, by Act
of the Common Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and the retiring Relevant Trustee shall comply
with
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the applicable requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as the Relevant
Trustee at a time when an Event of Default shall have occurred and be
continuing, the Preferred Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and the Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholders or the
Securityholders and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust Securities 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
Relevant Trustee with respect to the Trust Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect to the Trust
Securities and the Trust and each appointment of a successor Trustee with
respect to the Trust Securities and the Trust to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the Depositor. Each
notice shall include the name of the successor Relevant Trustee with respect to
the Trust Securities and the Trust and the address of its Corporate Trust
Office.
Section 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee with respect to all
Trust Securities and the Trust, every such successor Relevant Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant Trustee shall
become effective and such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on the request of the Depositor or
the successor Relevant Trustee, such retiring Relevant Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to such successor
Relevant Trustee all property and money held by such retiring Relevant Trustee
hereunder.
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In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (2) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees of the same trust and that each such Relevant Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Trustee all Trust Property, all proceeds thereof and money held by
such retiring Relevant Trustee hereunder with respect to the Trust Securities
and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Relevant Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Relevant
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Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Relevant Trustee, shall be the successor
of the Relevant Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust. If and when the Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Trustee or the Delaware Trustee, as the
case may be, shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
Section 8.14. Reports by Trustee. (a) Within 60 days after
December 31 of each year commencing with December 31, 1995 the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear in
the Register, and to the Depositor, a brief report dated as of such December 31
with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing
Date) ending with such December 31 or, if the Trustee has not complied
in any material respect with such obligations, a description of such
non-compliance; and
(iii) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition the Trustee shall transmit to Securityholders
such reports concerning the Trustee and its actions under this Trust Agreement
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee
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with each stock exchange upon which the Trust Securities are listed, with the
Commission and with the Depositor.
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 2030 (the "Expiration Date") following
the distribution of the Trust Property in accordance with Section 9.04.
Section 9.02. Early Termination. Upon the first to occur of any
of the following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event, dissolution or
liquidation of, in respect of, the Depositor; and
(ii) the redemption of all of the Preferred Securities;
then the Trustee shall take such action as is required by Section 9.04.
Section 9.03. Termination. The respective obligations and
responsibilities of the Trust and the Trustee created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Trustee
to Securityholders upon the liquidation of the Trust pursuant to Section 9.04,
or upon the redemption of all of the Trust Securities pursuant to Section 4.02,
of all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (ii) the payment of any expenses owed by the Trust; and
(iii) the discharge of all administrative duties of the Trustee, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.04. Liquidation. (a) If an Early Termination Event
specified in clause (i) of Section 9.02 occurs, the Trust shall be liquidated by
the Trustee as expeditiously as the Trustee determines to be possible by
distributing to each Securityholder a Like Amount of Debentures, subject to
Section 9.04(d). Notice of liquidation shall be given by the Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of
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Trust Securities at such Holder's address appearing in the Security Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(d) applies receive a Liquidation
Distribution, as the Trustee shall deem appropriate.
(b) Except where Section 9.04(d) applies, in order to affect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Trustee shall establish a record date for such distribution
(which shall be not more than 45 days prior to the Liquidation Date) and, either
itself acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem appropriate to
affect the distribution of Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 9.04(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Trustee or its agent for exchange, (iii) any Trust Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments or interest or principal will be
made to Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner
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provided herein is determined by the Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Trustee in such manner as the Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities.
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor. Subject to the terms
and conditions hereof, the Depositor irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be for the benefit,
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 10.02. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or otherwise,
in a Trust Security shall
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not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Securityholder for such person,
to claim an accounting, take any action or bring any proceeding in any court for
a partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Section 10.03. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Trustee and the Depositor, without the consent of any Securityholders, (i)
to cure any ambiguity, correct or supplement any provision herein or therein
which may be inconsistent with any other provision herein or therein, or to make
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, provided, however, that any such amendment shall not
adversely affect in any material respect the interests of any Securityholder or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will not be
classified for United States federal income tax purposes as an association
taxable as a corporation at any time that any Trust Securities are outstanding;
provided, however, that, except in the case of clause (ii), such action shall
not adversely affect in any material respect the interests of any Securityholder
and, in the case of clause (i), any amendments of this Trust Agreement shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any
provision of this Trust Agreement may be amended by the Trust or the Trustee
with (i) the consent of Trust Securityholders representing not less than 66-2/3%
(based upon Liquidation Amounts) of the Trust Securities then outstanding and
(ii) receipt by the Trustee of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustee in accordance with
such amendment will not affect the Trust's status as a grantor trust for federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or
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timing of any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Securityholder
to institute suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.06 hereof), paragraph (b) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, the Trustee shall not enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
Section 10.04. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates 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 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEE
WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
Section 10.06. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustee or both, including any successor by operation of law.
Section 10.07. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be
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given or served in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case, addressed,
(i) in the case of a Preferred Securityholder, to such Preferred Securityholder
as such Securityholder's name and address may appear on the Register and (ii) in
the case of the Common Securityholder or the Depositor, to The B.F.Goodrich
Company, 3925 Embassy Parkway, Akron, Ohio 44333-1799, Attention: Treasurer,
facsimile no. 216-374-4087, with a copy to the Secretary, facsimile no.
216-374-3456. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust or the Trustee shall be given in writing addressed (until
another address is published by the Trust) as follows: The Bank of New York, 101
Barclay Street, 21 West, New York, NY 10286, Attention: Corporate Trust
Department with a copy to: The Bank of New York (Delaware), White Clay Center,
Route 273, Newark, Delaware 19711, Attention: Corporate Trust Department. Such
notice, demand or other communication to or upon the Trust or the Trustee shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Trustee.
Section 10.09. Agreement Not to Petition. Each of the Trustee
and the Depositor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in accordance
with Article IX, it shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.09, the
Trustee agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such action
and raise the defense that the Depositor has agreed in writing not to take such
action and should be stopped and precluded therefrom and such other defenses, if
any, as counsel for the Trustee or the Trust may assert. The provisions of this
Section 10.09 shall survive the termination of this Trust Agreement.
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Section 10.10. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required provision shall control.
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THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND
PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
THE B.F.GOODRICH COMPANY
By:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title:
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<PAGE> 57
EXHIBIT A
CERTIFICATE OF TRUST
OF
BFGOODRICH CAPITAL
THIS CERTIFICATE OF TRUST of BFGoodrich Capital (the "Trust"),
dated __________, 1995, is being duly executed and filed by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
BFGoodrich Capital.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
is The Bank of New York (Delaware), White Clay Center, Route 273, Newark,
Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:___________________________
Name:
Title:
THE BANK OF NEW YORK,
as Delaware Trustee
By:___________________________
Name:
Title:
<PAGE> 58
EXHIBIT B
_____ ___, 1995
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: ____________
General Counsel's Office
Re: BFGoodrich Capital ___% Cumulative Quarterly Income
Preferred Securities, Series A
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the BFGoodrich Capital ___% Cumulative Quarterly Income Preferred Securities,
Series A (the "Preferred Securities"), of BFGoodrich Capital, a Delaware
business trust (the "Issuer"). The payment of distributions on the Preferred
Securities and payments due upon liquidation of the Issuer or redemption of the
Preferred Securities are guaranteed by The B.F.Goodrich Company ("BFG") to the
extent set forth in a Guarantee Agreement dated ________ ___, 1995 by BFG and
The Bank of New York, as guarantee trustee, with respect to the Preferred
Securities. BFG and the Issuer propose to sell the Preferred Securities to
certain Underwriters (the "Underwriters") pursuant to an Underwriting Agreement
dated ________ ___, 1995 by and among the Underwriters, the Issuer and BFG dated
________ ___, 1995, and the Underwriters wish to take delivery of the Preferred
Securities through DTC. The Bank of New York is acting as transfer agent and
registrar with respect to the Preferred Securities (the "Transfer Agent and
Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance
<PAGE> 59
with DTC's rules with respect to the Preferred Securities, the Issuer, the
Transfer Agent and Registrar and DTC agree among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities
to the Underwriters, which is expected to occur on or about ________ ___, 1995,
there shall be deposited with DTC one or more global certificates (individually
and collectively, the "Global certificate") registered in the name of DTC's
nominee, Cede & Co., representing an aggregate of _________ Preferred Securities
and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
2. The Amended and Restated Trust Agreement of BFGoodrich
Capital provides for the voting by holders of the Preferred Securities under
certain limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or
B-2
<PAGE> 60
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
B-3
<PAGE> 61
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "BFGoodrich Capital ___% Cumulative Quarterly Income Preferred Securities,
Series A".
8. Distribution payments or other cash payments with respect
to the Preferred Securities evidenced by the Global certificate shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in next day
funds on each payment date (or in accordance with existing arrangements between
the Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
B-4
<PAGE> 62
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by the Global
certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global certificate; or (b)
may make an appropriate notation on the Global certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary
with respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar and to return the Global certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
12. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed
B-5
<PAGE> 63
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent
and Registrar to advance funds on behalf of the Issuer.
Very truly yours,
BFGoodrich Capital
(As Issuer)
By: The Bank of New York,
Trustee
By: _________________________
Name:
Title:
The Bank of New York
(As Transfer Agent and Registrar)
By: ___________________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: ________________________
Authorized Officer
B-6
<PAGE> 64
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
BFGoodrich Capital
Common Securities
(liquidation amount $25 per Common Security)
BFGoodrich Capital, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that The
B.F.Goodrich Company (the "Holder") is the registered owner of _____ (_____)
common securities of the Trust representing ownership interests in the Trust and
designated the Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). In accordance with Section 5.10 of the Trust
Agreement (as defined below) the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of _______ ___, 1995, as the same may be amended from time to time (the
"Trust Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
<PAGE> 65
IN WITNESS WHEREOF, the Trustee of the Trust has executed this
certificate this ____ day of _________, 1995.
BFGoodrich Capital
By: The Bank of New York,
as trustee
By:______________________
Name:
Title:
C-2
<PAGE> 66
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between The
B.F.Goodrich Company, a New York corporation ("BFG"), and BFGoodrich Capital, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Cumulative
Quarterly Common Securities (the "Common Securities") to and receive Debentures
from BFG and to issue and sell BFGoodrich Capital ___% Cumulative Quarterly
Income Preferred Securities, Series A (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of ________ __, 1995
as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, BFG is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase BFG hereby agrees shall benefit BFG
and which purchase BFG acknowledges will be made in reliance upon the execution
and delivery of this Agreement, BFG and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by BFG. Subject to the terms and
conditions hereof, BFG hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
<PAGE> 67
Section 1.02. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by BFG and The Bank of New York, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. BFG hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and BFG hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of BFG under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the Obligations
or any action on the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt or, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, BFG with respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against BFG and BFG waives any right or remedy to require
that any action be brought
D-2
<PAGE> 68
against the Trust or any other person or entity before proceeding against BFG.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of BFG and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex), to wit:
BFGoodrich Capital
c/o [Trustee]
Facsimile No.:
Attention:
The B.F.Goodrich Company
Facsimile No.:
Attention:
(with a copy to the attention of the
General Counsel
Facsimile No.: )
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
D-3
<PAGE> 69
THIS AGREEMENT is executed as of the day and year first above
written.
THE B.F.GOODRICH COMPANY
By:______________________
Name:
Title:
BFGoodrich Capital
By: The Bank of New York
By:______________________
Name:
Title:
D-4
<PAGE> 70
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- -] This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
BFGoodrich Capital or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
BFGoodrich Capital
___% Cumulative Quarterly Income Preferred Securities,
Series A
(liquidation amount $25 per Preferred Security)
BFGoodrich Capital, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the registered owner of _____ (_____) preferred securities of
the Trust representing an ownership interest in the Trust and designated the
BFGoodrich Capital ___%
<PAGE> 71
Cumulative Quarterly Income Preferred Securities, Series A (liquidation amount
$25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.04 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of _______ ___, 1995, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The holder of this certificate is entitled to
the benefits of the Guarantee Agreement of The B.F.Goodrich Company, a New York
corporation, and The Bank of New York, as guarantee trustee, dated as of _______
___, 1995 (the "Guarantee") to the extent provided therein. The Trust will
furnish a copy of the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, the Trustee of the Trust has executed this
certificate this ____ day of _________, 1995.
BFGOODRICH CAPITAL
By: The Bank of New York,
as trustee
By:______________________
Name:
Title:
E-2
<PAGE> 72
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
E-3
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
THE B.F.GOODRICH COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
----------------
INDENTURE
DATED AS OF __________, 1995
----------------
$[130,412,375]
_____% JUNIOR SUBORDINATED DEBENTURES, SERIES A,
DUE 2025
- --------------------------------------------------------------------------------
<PAGE> 2
.....................................
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- --------------
<S> <C> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- --------------
<S> <C>
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- --------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request; Company Order . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 4
Extension Period . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Parent Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</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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<TABLE>
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Security Register;
Security Registrar . . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents
Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and
the Company . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . 12
SECTION 108. Effect of Headings and
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
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of the Indenture.
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . 15
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . 18
SECTION 204. Form of Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication,
Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed,
Lost and Stolen Securities . . . . . . . . . . . . . . . . . . 26
SECTION 307. Payment of Interest;
Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 27
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . 29
SECTION 311. Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 312. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
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of the Indenture.
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ARTICLE FOUR
Satisfaction and Discharge
<S> <C>
SECTION 401. Satisfaction and
Discharge of Indenture . . . . . . . . . . . . . . . . . . . . 30
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . . . . . 34
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . 37
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest . . . . . . . . . . . . . . . . 38
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . 38
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
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of the Indenture.
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SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . 39
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . 40
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . 41
SECTION 604. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . . . . 43
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . . . . 45
SECTION 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . 47
</TABLE>
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of the Indenture.
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SECTION 613. Preferential Collection of
Claims Against Company . . . . . . . . . . . . . . . . . . . . 48
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . 48
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . 49
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 50
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . 54
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . 54
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . 54
</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 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . 55
SECTION 1003. Money for Security Payments to
Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1004. Statement by Officers as to
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1005. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1102. Default on Senior Indebtedness . . . . . . . . . . . . . . . . . 58
SECTION 1103. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . 59
SECTION 1104. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1105. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . 62
SECTION 1106. Notice by the Company . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1107. Rights of the Trustee; Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1108. Subordination May Not be Impaired . . . . . . . . . . . . . . . . 64
</TABLE>
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of the Indenture.
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ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption; Conditions to
Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1202. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1203. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1204. Selection by Trustee of Securities to
be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1205. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1206. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1207. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1208. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ANNEX A: Form of Amended and Restated Trust Agreement between the
Company, as Depositor, and The Bank of New York and The Bank of
New York (Delaware), as trustees, dated as of ___________, 1995.
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of the Indenture.
</TABLE>
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<PAGE> 12
INDENTURE, dated as of ______________, 1995, between The B.F.Goodrich
Company, a corporation duly organized and existing under the laws of the State
of New York (herein called the "Company"), having its principal office at 3925
Embassy Parkway, Akron, Ohio 44333-1799, and The Bank of New York, a New York
banking corporation, as Trustee (herein called the "Trustee"). Unless otherwise
defined herein, all capitalized items used herein shall have the meanings
ascribed to them in the Amended and Restated Trust Agreement between the
Company, as Depositor, The Trustee and The Bank of New York (Delaware), as
co-trustees, dated as of ___________, 1995 (the "Trust Agreement"), as in effect
on the date hereof, the form of which is attached as Annex A hereto.
RECITALS OF THE COMPANY
WHEREAS, BFGoodrich Capital may pursuant to the Underwriting Agreement
dated __________, 1995 among the Company, BFGoodrich Capital and the
Underwriters named therein issue up to $126,500,000 aggregate liquidation
preference of its ____% Cumulative Quarterly Income Preferred Securities, Series
A (the "Preferred Securities") with a liquidation preference of $25 per
Preferred Security;
WHEREAS, the Company is guaranteeing the payment of distributions on
the Preferred Securities, and payment of the Redemption Price and payments on
liquidation with respect to the Preferred Securities, to the extent provided in
the Guarantee Agreement dated ___________, 1995, by the Company and The Bank of
New York, as guarantee trustee (the "Parent Guarantee") for the benefit of the
holders of the Preferred Securities;
WHEREAS, the Company wishes to sell to BFGoodrich Capital, and
BFGoodrich Capital wishes to purchase from the Company, Securities (as defined
below) in an aggregate principal amount equal to $[130,412,375], and in
satisfaction of the purchase price for such Securities, the trustees of
BFGoodrich Capital, on behalf of BFGoodrich Capital, wish to (i) execute and
deliver to the Company Common Securities certificates evidencing an ownership
interest in BFGoodrich Capital, registered in the name of the Company, in an
aggregate amount of ______ Common Securities having an aggregate liquidation
amount of $______, and (ii) deliver to the Company the sum of $_____;
WHEREAS, the Company has duly authorized the creation of an issue of
its ____% Junior Subordinated Debentures, Series A, Due 2025 (the "Securities"),
of sub-
<PAGE> 13
stantially the tenor and amount hereinafter set forth and to provide therefor
the Company has duly authorized the execution and delivery of this Indenture;
and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to
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<PAGE> 14
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" means (i) interest that shall accrue on any
interest on the Securities that is in arrears for more than one quarter or not
paid during an Extension Period, which in either case shall accrue at the rate
of ____% per annum compounded quarterly and (ii) if BFGoodrich Capital is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority, such amounts as shall be required so that the net
amounts received and retained by BFGoodrich Capital after paying such taxes,
duties, assessments or governmental charges shall not be less than the amounts
BFGoodrich Capital would have received had no such taxes, duties, assessments or
governmental charges been imposed.
"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.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or a Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the trustee, under the Trust
Agreement, is closed for business.
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<PAGE> 15
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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 Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust business
shall be administered and which at the date of this Indenture is 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Extension Period" has the meaning specified in Section 301.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date", when used with respect to any installment of
interest on a Security, means the date
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<PAGE> 16
specified in such Security as the fixed date on which an installment of interest
with respect to the Securities is due and payable.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except: (i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the
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<PAGE> 17
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and (iii) 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.
"Parent Guarantee" has the meaning specified in the Recitals to this
instrument.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
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
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the Recitals to
this instrument.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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<PAGE> 18
"Regular Record Date" for the interest payable on any Interest Payment
Date means the Business Day next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any, interest
on and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred, created or assumed: (i)
all indebtedness of the Company on a consolidated basis (other than any
obligations to trade creditors) evidenced by notes, debentures, bonds or other
securities sold by the Company for money borrowed; (ii) all indebtedness of
others of the kinds described in the preceding clause (i) assumed or guaranteed
in any manner by the Company or in effect guaranteed by the Company; and (iii)
all renewals, extensions or refundings of indebtedness of the kinds described in
either of the preceding clauses (i) or (ii), unless, in the case of any
particular indebtedness, renewal, extension or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, renewal, extension or refunding is
not superior in right of payment to or is pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the
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date specified in such Security as the fixed date on which the principal,
together with any accrued and unpaid interest (including Additional Interest),
of such Security or such installment of interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tax Event" means the receipt by BFGoodrich Capital of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, clarification of, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or as a result of any official administrative pronouncement, ruling, regulatory
procedure, notice or announcement (including any notice or announcement of
intent to adopt such procedures or regulations) or amendment, clarification or
change in the official position or the interpretation of such laws or
regulations or judicial decision interpreting, clarifying or applying such laws
or regulations, in each case, by any legislative body, court, governmental
authority or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which amendment,
clarification, or change is effective or such pronouncement or decision is
announced on or after the date of issuance of the Preferred Securities, there is
more than an insubstantial risk that (i) BFGoodrich Capital is, or will be
within 90 days of the date thereof, subject to United States federal income tax
with respect to interest received on the Securities, (ii) interest payable by
the Company on the Securities is not, or within 90 days of the date thereof will
not be, deductible for United States federal income tax purposes or (iii)
BFGoodrich Capital is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Trust Agreement" has the meaning specified in the first paragraph of
this instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor
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<PAGE> 20
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 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.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 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 an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the
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matters upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the author-
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ity of the Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(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.
SECTION 105. Notices, Etc., to Trustee and the 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
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every pur-
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<PAGE> 23
pose 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, 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. 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. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. 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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<PAGE> 24
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. 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, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal of the Securities need not be made on such date, but may be made on
the next succeeding Business Day
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<PAGE> 25
(except that, if such Business Day is in the next succeeding calendar year, such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
shall be the immediately preceding Business Day) with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these or other methods, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
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SECTION 202. Form of Face of Security.
THE B.F.GOODRICH COMPANY
____% Junior Subordinated Debenture, Series A,
Due 2025
No._________ $___________
CUSIP No. ___________
THE B.F.GOODRICH COMPANY, a corporation duly organized and existing
under the laws of the State of New York (herein called "BFG", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _____________ ________________, or
registered assigns, the principal sum of _________ DOLLARS ($__________) on
__________, 2025 and to pay interest on said principal sum from _______, 1995 or
from the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year, commencing __________, 1995, at the rate of ____%
per annum plus Additional Interest, if any, until the principal hereof shall
have become due and payable, and on any overdue principal [and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum]. The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. In the event that any date on
which interest is payable on this Security is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other than a
Saturday or a Sunday or a day on which banking institutions in the City of New
York are authorized or required by law or executive order to remain closed or a
day on which the Corporate Trust Office of the Trustee, or the principal office
of the trustee under the Trust Agreement, is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more
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<PAGE> 27
Predecessor Securities, as defined in the Indenture) is registered at the close
of business on the Regular Record Date for such interest installment, which
shall be the close of business on the Business Day next preceding such Interest
Payment Date. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
BFG shall have the right at any time during the term of this Security,
from time to time, to extend the interest payment period of such Security for up
to 20 consecutive quarters (an "Extension Period"), during which periods
interest will compound quarterly and BFG shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period BFG shall pay all interest then accrued and unpaid (together
with interest thereon at the rate specified for the Securities to the extent
that payment of such interest is permitted by applicable law); provided that
during any such Extension Period, BFG shall not declare or pay any dividend or
distribution (other than a dividend or distribution in common stock of BFG) on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock, or make any guarantee payments with respect to the
foregoing (other than payments under the Parent Guarantee). Prior to the
termination of any such Extension Period, BFG may further extend the interest
payment period, provided that such Extension Period together with all such
previous and further extensions thereof shall not exceed 20 consecutive quarters
or extend beyond the Maturity of this Security. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, BFG may select a new Extension Period, subject to
the above requirements. No interest shall be due and payable during an Extension
Period except at the end thereof. BFG shall give the Holder of this Security and
the Trustee notice of its selection of an Extension Period at least one Business
Day prior to the earlier of (i) the Interest Payment Date or (ii) the date
BFGoodrich Capital is required to give notice
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<PAGE> 28
to the New York Stock Exchange or other applicable self-regulatory organization
or to holders of the Preferred Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day prior
to such record date.
Payment of the principal of and interest on this Security will be made
at the office or agency of BFG maintained for that purpose in New York, New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of BFG payment of interest may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE> 29
IN WITNESS WHEREOF, The B.F.Goodrich Company has caused this instrument
to be duly executed under its corporate seal.
Dated: ___________, 1995
THE B.F.GOODRICH COMPANY
By:___________________________
Name:
Title:
Attest:
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SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of BFG,
designated as its ____% Junior Subordinated Debentures, Series A, Due 2025
(herein called the "Securities"), limited in aggregate principal amount to
$_____________, issued under an Indenture, dated as of ___________, 1995 (herein
called the "Indenture"), between BFG and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, BFG and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture or
in the Trust Agreement attached as Annex A thereto shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
At any time on or after ___________, 2000, BFG shall have the right,
subject to the terms and conditions of Article Twelve of the Indenture, to
redeem this Security at the option of BFG, without premium or penalty, in whole
or in part, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus accrued but unpaid interest, including any Additional Interest, if
any, to the
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<PAGE> 30
Redemption Date. If a Tax Event as defined in Article Twelve of the Indenture
shall occur and be continuing, BFG shall have the right, subject to the terms
and conditions of Article Twelve of the Indenture, to redeem this Security at
the option of BFG, without premium or penalty, in whole but not in part, at a
Redemption Price equal to 100% of the principal amount thereof plus accrued but
unpaid interest, including any Additional Interest, if any, to the Redemption
Date. Any redemption pursuant to this paragraph will be made upon not less than
30 nor more than 60 days' notice, at the Redemption Price. If the Securities are
only partially redeemed by BFG, the Securities will be redeemed pro rata, by lot
or in such other manner as the Trustee shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions
(equal to twenty-five U.S. dollars ($25) or any integral multiple thereof) of
the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for satisfaction and discharge at any
time of the entire indebtedness of this Security upon compliance by BFG with
certain conditions set forth in the Indenture.
The Indenture contains provisions permitting BFG and the Trustee, with
the consent of Holders on not less than a majority in principal amount of the
Outstanding Securities, to modify the Indenture in a manner affecting the rights
of the Holders of the Securities; provided that no such modification may,
without the consent of the Holder of each Outstanding Security, (i) extend the
fixed maturity of the Securities, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, on reduce any
premium payable upon the redemption thereof, or (ii) reduce the percentage of
principal amount of the Securities, the Holders of which are required to consent
to any such modification of the Indenture. The Indenture also contains
provisions permitting Holders of specified percentages in principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all
Securities, to waive compliance by BFG with certain
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<PAGE> 31
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of BFG, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of BFG in New York, New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to BFG and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but BFG may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer,
BFG, the Trustee and any agent of BFG or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither BFG, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Securities are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE
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<PAGE> 32
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
-------------------------,
as Trustee
By: _______________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to the sum of (a) $113,402,075 and
(b) such aggregate principal amount (which may not exceed $17,010,300 aggregate
principal amount) of Securities as shall be purchased by the "Underwriters" on
the "Option Closing Date" (both as defined in the Underwriting Agreement)
pursuant to and in accordance with the terms and provisions of the Underwriting
Agreement, dated _________, 1995, between the Company and Goldman, Sachs & Co.,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1208.
The Securities shall be known and designated as the "____% Junior
Subordinated Debentures, Series A, Due 2025" of the Company. Their Stated
Maturity shall be ______, 2025, and they shall bear interest at the rate of ___%
per annum, from ________, 1995 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein), in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing _____, 1995 until
the principal thereof is
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<PAGE> 33
paid or made available for payment. Interest will compound quarterly and will
accrue at the rate of ____% per annum on any interest installment in arrears for
more than one quarter or during an extension of an interest payment period as
set forth below in this Section 301. In the event that any date on which
interest is payable on the Securities is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (except that, if such Business Day is in the next succeeding
calendar year, such Interest Payment Date shall be the immediately preceding
Business Day) (and without any interest or other payment in respect of any such
delay).
The Company shall have the right, at any time during the term of the
Securities, from time to time to extend the interest payment period for up to 20
consecutive quarters (the "Extension Period") during which periods interest will
compound quarterly and the Company shall have the right to make partial payments
of interest on any Interest Payment Date, and at the end of which Extension
Period the Company shall pay all interest then accrued and unpaid thereon
(together with Additional Interest at the rate specified for the Securities to
the extent permitted by applicable law), provided, however, that during any such
Extension Period, the Company shall not declare or pay any dividend or
distribution (other than a dividend or distribution in common stock of the
Company) on, or redeem, purchase, acquire or made a liquidation payment with
respect to, any of its capital stock, or make any guarantee payments with
respect to the foregoing (other than payments under the Parent Guarantee). Prior
to the termination of any such Extension Period, the Company may further extend
the interest payment period, provided that such Extension Period together with
all such previous and further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the Maturity of the Securities. Upon termination of
any Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due, the Company may select a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof. The Company shall give
BFGoodrich Capital and the Trustee notice of its selection of such Extension
Period at least one Business Day prior to the earlier of (i) the Interest
Payment Date or (ii) the date BFGoodrich Capital is required to give notice to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Preferred Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day prior
to such record date.
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The principal of and interest on the Securities shall be payable at the
office or agency of the Company in the United States maintained for such purpose
and at any other office or agency maintained by the Company for such purpose in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto as specified in the Security Register.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may
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deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
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with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 906 not involving any transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original 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 this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
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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 at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (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 in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and, if so listed, upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Interest) on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. Right of Set-Off.
Notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Parent Guarantee.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or
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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 interest (including
Additional 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 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the 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) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. The Trustee shall
not invest money deposited with it pending distribution of such amounts.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Eleven or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) failure for 10 days to pay any interest on the Securities,
including any Additional Interest in respect thereof, when due (subject
to the deferral of any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Securities when due
whether at Stated Maturity, upon redemption by declaration or
otherwise; or
(3) failure to observe or perform in any material respect any
other covenant herein for 90 days after written notice to the Company
from the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities; or
(4) entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
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liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of substantially all of the property of the Company,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(5) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Company or to the entry of a decree or order for relief in respect
of itself in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by the Company to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the admission
by the Company in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have the right to declare the principal of and the
interest on all the Securities (including any Additional Interest) and any other
amounts payable hereunder to be due and payable immediately, provided, however,
that if upon an Event of Default, the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Securities fail to declare the
payment of all amounts on the Securities to be immediately due and payable, the
holders of at least 25% in aggregate liquidation preference of Preferred
Securities then outstanding shall have such right, by a notice in writing to the
Company (and to the Trustee if given by Holders or the holders of Preferred
Securities) and to enforce any and all other rights of Holders of Securities as
creditors with respect to the Securities. Upon any such declaration such
principal and all accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest (including any Additional Interest) on
all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest thereon
at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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 interest (including any
Additional Interest) on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including any Additional Interest), and,
to the extent that payment thereof shall be legally enforceable, interest on any
overdue principal and on any overdue interest (including any Additional
Interest), at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights,
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whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal
of and interest (including any Additional Interest) on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest
(including any Additional Interest), respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal 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 (subject to Section 307) interest
(including any Additional Interest) on such Security on the respective Stated
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.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 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 of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities 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, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1008 hereof, the Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of
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all the Securities waive any past default hereunder and its consequences, except
a default
(1) in the payment of the principal of or interest (including any
Additional Interest) on any Security (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration has been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 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, that neither this Section 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 or the Trustee or in
any suit for the enforcement of the right to receive the principal of and
interest (including any Additional Interest) on any Security.
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 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
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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.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not 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 give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 501(3), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting
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upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(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) the Trustee may consult with counsel of its choice and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
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further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(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 and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
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 assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent. Money held
by the Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
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 provisions of this Section shall survive the termination of this
Indenture.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office in New York, New York. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
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 and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; provided that, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so
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authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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).
ARTICLE SEVEN
Holders' Lists 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) semiannually, not later than February 15 and August 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days prior
to the delivery thereof, 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 list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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
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the Trustee as provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties 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.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the 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 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 Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any
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information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest (including any Additional
Interest) on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the
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Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of 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;
(3) such consolidation or merger or conveyance, transfer or lease of
properties or assets of the Company is permitted under, and does not give
rise to any breach or violation of, the Trust Agreement or the Parent
Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been 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 the properties
and assets of the Company substantially as an entirety 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.
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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:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided that such action pursuant to this clause (3) shall not
adversely affect the interests of the Holders of the Securities or, so long
as any of the Preferred Securities shall remain outstanding, the holders of
the Preferred Securities; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the
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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 modifying in any manner the rights of the
Holders 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 interest (including any Additional Interest) on, any Security, or reduce
the principal amount thereof or the rate of interest thereon, or change the
place of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or modify the
provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby;
provided, that, so long as any of the Preferred Securities remains outstanding,
no such amendment shall be made that adversely affects the holders of the
Preferred Securities, and no termination of this Agreement shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Agreement shall be effective, without the prior consent of the holders of at
least 66-2/3% of the aggregate liquidation preference of the outstanding
Preferred Securities unless and until the Securities and all
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accrued and unpaid interest (including any Additional Interest) thereon have
been paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 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 modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any
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such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities 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 United States 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.
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SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or at the option of the Company before each due date of the principal of or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal 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. In such case the Company shall not invest the
amount so segregated and held in trust pending the distribution thereof.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the
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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.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
material terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Additional Covenants.
The Company covenants and agrees that will it not declare or pay any
cash distribution on, or redeem, purchase, acquire or made a cash distribution
or liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing (other than payments under the
Parent Guarantee) if at such time (i) there shall have occurred any event of
which the Company has actual knowledge that (a) with the giving of notice or the
lapse of time or both, would constitute an Event of Default hereunder and (b) in
respect of which the Company shall not have taken reasonable steps to cure, (ii)
the Company shall be in default with respect to its payment of any obligations
under the Parent Guarantee or (iii) the Company shall have given notice of its
selection of an Extension Period as provided herein and such period, or any
extension thereof, shall be continuing.
The Company also covenants (i) to maintain 100% ownership of the Common
Securities of BFGoodrich Capital; provided, however, that any permitted
successor of the Company hereunder may succeed to the Company's ownership of
such Common Securities, (ii) not to voluntarily dissolve, wind-up or terminate
BFGoodrich Capital, except in connection with a distribution of the Securities
to the holders of Preferred Securities in liquidation of BFGoodrich
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<PAGE> 69
Capital or in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of the Trust Agreement, to cause
BFGoodrich Capital to remain a business trust and not to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner herein-after set forth in this Article (subject to Article Four), the
payment of the principal of and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full in cash of all Senior
Indebtedness.
This Article Eleven shall constitute a continuing offer to all persons
who become holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior Indebtedness and
such holders are made obligees hereunder and any one or more of them may enforce
such provisions. Holders of Senior Indebtedness need not prove reliance on the
subordination provisions hereof.
SECTION 1102. Default on Senior Indebtedness.
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness (and any applicable grace period with respect to such default has
ended and such default has not been cured or waived) or in the event that the
maturity of any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of, or interest on, the
Securities.
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In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraph of this Section 1102, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 1103. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made on account of the
principal or interest on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization any payment by the Company, or
distribution of substantially all of the assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Security or the Trustee would be entitled, except for the provisions of this
Article Eleven, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of
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Senior Indebtedness, before any payment or distribution is made to the Holders
of Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Eleven, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Eleven with
respect to the Securities to the payment of all Senior Indebtedness that may at
the time be outstanding, provided, however, that (i) the Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eight hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 1103 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof. Nothing in Section 1102 or in this Section 1103 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
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<PAGE> 72
SECTION 1104. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Eleven, and no payment over
pursuant to the provisions of this Article Eleven, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article Eleven are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness on the other hand.
Nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities 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 of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Eleven of the holders of Senior
Indebtedness 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 Eleven, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities, shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which
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<PAGE> 73
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Holders of the Securities, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness 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 Eleven.
SECTION 1105. Trustee to Effectuate Subordination.
Each Holder of a Security by acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Eleven and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 1106. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Eleven. Notwithstanding the
provisions of this Article Eleven or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article Eleven,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Company or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 1106 at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive
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<PAGE> 74
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, 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 Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Eleven, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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 Eleven, 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 1107. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Eleven in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Eleven, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness 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 Indebtedness and, subject to the
provisions of Section 601, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to holders of Securities,
the Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Eleven or otherwise.
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<PAGE> 75
SECTION 1108. Subordination May Not be Impaired.
No right of any present or future holder of any Senior Indebtedness 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 that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness in outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption; Conditions to Optional Redemption.
At any time on or after _________, 2000, the Company shall have the
right, subject to the last paragraph of this Section 1201, to redeem the
Securities, in whole or in part, from time to time, at a Redemption Price equal
to 100% of the principal amount of Securities to be redeemed plus accrued but
unpaid interest, including any Additional Interest, if any, to the Redemption
Date.
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If a Tax Event shall occur and be continuing, the Company shall have
the right, subject to the last paragraph of this Section 1201, to redeem the
Securities in whole but not in part, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date.
The principal amount of the Securities to be redeemed in the
circumstances described in this Section 1201 shall not, however, exceed the
amount of the proceeds derived, directly or indirectly, by the Company or any
Subsidiary from the issuance and sale of the Company's common stock within two
years preceding the applicable Redemption Date. For so long as BFGoodrich
Capital is the Holder of all Securities Outstanding, the proceeds of any
redemption described in this Section 1201 shall be used by BFGoodrich Capital to
redeem Preferred Securities in accordance with their terms. The Company shall
not redeem the Securities in part unless all accrued and unpaid interest
(including any Additional Interest) has been paid in full on all Securities
Outstanding for all quarterly interest periods terminating on or prior to the
Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
by Section 1201, shall be made in accordance with such provision and this
Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section
1201 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 30 days and no more than 60
days prior to the Redemption Date fixed by the Company, notify the Trustee of
such Redemption Date and of the principal amount of Securities to be redeemed
and provide a copy of the notice of redemption given to Holders of Securities to
be redeemed pursuant to Section 1204.
SECTION 1204. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), 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 not
previously called for redemption, by such method (including pro rata or by lot)
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25 or any integral multiple
thereof) of the principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such
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Security to be redeemed and that interest thereon will cease to accrue on
and after said date, and
(4) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1206. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that 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 shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
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SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, 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.
--------------------
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have 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.
THE B.F.GOODRICH COMPANY
By:_______________________
Name:
Title:
Attest:
- ----------------------------
THE BANK OF NEW YORK
By:_______________________
Name:
Title:
Attest:
- ----------------------------
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<PAGE> 81
STATE OF ________ ) ss.:
COUNTY OF ________ )
On the _____ day of ________________ , 1995, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is the ___________________________ of The B.F.Goodrich Company,
one of the corporations described in and which executed the foregoing
instrument; and that he/she signed his/her name thereto by authority of the
Board of Directors of such corporation.
------------------------------
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<PAGE> 82
STATE OF ________ ) ss.:
COUNTY OF ________ )
On the _____ day of _____________ , 1995, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she is a ________________ of _______________________________, a
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of the Board of Directors of
such corporation.
------------------------------
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<PAGE> 1
Exhibit 4.6
GUARANTEE AGREEMENT
Between
The B.F.Goodrich Company
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
_____________ ___, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application . . . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . . . 5
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . . . 5
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . . . . 5
SECTION 2.05. Evidence of Compliance with Conditions Precedent . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . . . . 6
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . . . 6
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . . . 6
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . . . . 8
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . . . 10
SECTION 4.02. Appointment, Removal and Resignation of Trustee . . 11
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . . . . 12
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . . . 12
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . . . . 13
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . . . 14
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.07. Independent Obligations . . . . . . . . . . . . . . 14
</TABLE>
-i-
<PAGE> 3
ARTICLE VI
SUBORDINATION
<TABLE>
<CAPTION>
<S> <C>
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . . . 14
ARTICLE VII
TERMINATION
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . 15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . . 15
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . . 15
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . . 16
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . . . 17
</TABLE>
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<PAGE> 4
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
- ------------------- ---------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
</TABLE>
- ----------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
-iii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
__________ __, 1995, is executed and delivered by The B.F.Goodrich Company, a
New York corporation (the "Guarantor"), and The Bank of New York, as trustee
(the "Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of BFGOODRICH CAPITAL, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _________ __, 1995 among the Trustee of the
Issuer named therein, The B.F. Goodrich Company, as Depositor, and the Holders
from time to time of ownership interests in the Issuer, the Issuer is issuing as
of the date hereof $126,500,000 aggregate liquidation amount of its ____%
Cumulative Quarterly Income Preferred Securities, Series A (the "Preferred
Securities") representing ownership interests in the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer
and the proceeds thereof will be used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor with the Issuer as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder thereof, which payment the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee Agreement,
the terms set forth below shall, unless
<PAGE> 6
the context otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"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.
"Common Securities" means the securities representing common
ownership interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of
its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) that are required to be
paid on such Preferred Securities but if and only to the extent the Trustee has
available in the Payment Account funds sufficient to make such payment, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), with respect to the Preferred Securities
called for redemption by the Issuer but if and only to the extent that the
Trustee has available in the Payment Account funds sufficient to make such
payment, (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with a redemption of all of
the Preferred Securities), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the Preferred Securities to
the date of payment, to the extent the Trust has funds legally available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
-2-
<PAGE> 7
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Indenture dated as of __________, 1995,
among the Guarantor (the "Debenture Issuer") and the Bank of New York, as
trustee.
"Majority in liquidation amount of the Securities" means a vote
by Holder(s) of Preferred Securities, voting separately as a class, of more than
50% of the liquidation amount of all Preferred Securities.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any
vice-president, any assistant vice-president,
-3-
<PAGE> 8
the secretary, any assistant secretary, the treasurer, any assistant treasurer,
any trust officer or assistant trust officer or any other officer of the
Corporate Trust Department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means The Bank of New York until a Successor Trustee
has been appointed and has accepted such appointment pursuant to the terms of
this Guarantee Agreement and thereafter means each such Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
-4-
<PAGE> 9
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to the
Trustee (a) semiannually, not later than February 15 and August 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, 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 Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor. The Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Within 60 days after July
1 of each year, the Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
-5-
<PAGE> 10
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of the Holders of all of the Preferred Securities, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Preferred Securities, notices of all Events of Default known to
the Trustee, unless such defaults have been cured before the giving of such
notice, provided that, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
SECTION 2.08. Conflicting Interests. The Trust Agreement shall
be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders of the Preferred Securities, and the Trustee shall
not transfer this Guarantee Agreement to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.04(b) or to a
Successor Trustee on acceptance
-6-
<PAGE> 11
by such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders of
the Preferred Securities.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Trustee shall
exercise such of the rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee Agreement 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:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such
-7-
<PAGE> 12
certificates or opinions that 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
Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) 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 liquidation amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
-8-
<PAGE> 13
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that, nothing contained in this Section
3.02(a)(v) shall be taken to relieve the Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder
-9-
<PAGE> 14
either directly or by or through agents or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders of the Preferred Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions;
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at
-10-
<PAGE> 15
least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trustee shall cease to be eligible to so
act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
-11-
<PAGE> 16
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert
-12-
<PAGE> 17
or exercise any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities, or any
action on the part of the Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Trustee to be held for the benefit of the Holders of the Preferred Securities;
(ii) the Trustee has the right to enforce this Guarantee Agreement on behalf of
the Holders of the Preferred Securities; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement; and (iv) if the
Trustee fails to enforce this Guarantee Agreement as above provided, any Holder
of the Preferred Securities may, after a period of 30 days has elapsed from such
Holder's written request to the Trustee to enforce this Guarantee Agreement,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer or any other person or entity.
-13-
<PAGE> 18
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication).
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to
all (if any) rights of the Holders of Preferred Securities against the Issuer in
respect of any amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any amounts of
Guarantee Payments are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, including the Debentures, except those made pari passu or subordinate
by their terms, (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to all
common stock of the Guarantor.
-14-
<PAGE> 19
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, (ii) the distribution of
Debentures to Holders of Preferred Securities in exchange for all of the
Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Preferred Securities or
under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under Article Eight of the Indenture, the
Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes
which do not adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than 66 2/3% in liquidation amount of
all the outstanding Preferred Securities. The provisions of Article Six of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 8.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth
below or such other address as the Guarantor may
-15-
<PAGE> 20
give notice of to the Holders of the Preferred Securities:
The B.F.Goodrich Company
c/o The B.F.Goodrich Company
3925 Embassy Parkway
Akron, Ohio 44333-1799
Facsimile No: 216-374-3456
Attention: Secretary]
(b) if given to the Issuer, in care of the Trustee, at the
Issuer's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Issuer may give notice to the
Holders of the Preferred Securities:
BFGoodrich Capital
3925 Embassy Parkway
Akron, Ohio 44333-1799
Facsimile No: 216-374-3456
Attention: Secretary
with copy to:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Facsimile No:
Attention: Corporate Trust Trustee Administration
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders of the Preferred Securities and, subject to Section
3.01(a), is not separately transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
-16-
<PAGE> 21
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-17-
<PAGE> 22
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
The B.F.Goodrich Company
By: ____________________
Name:
Title:
The Bank of New York,
as Trustee
By: ____________________
Name:
Title:
-18-
<PAGE> 1
EXHIBIT 12.1
THE B.F.GOODRICH COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions, except for ratios)
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED -----------------------------------------------
MARCH 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
COMPUTATION OF EARNINGS:
Income from continuing operations before
income taxes and cumulative effect of
change in accounting method $28.6 $108.6 $15.3 $14.4 $44.1 $104.2
Add (Deduct):
Interest expense, net of capitalized interest 15.0 58.0 48.9 48.2 42.3 23.5
Amortization of interest previously
capitalized 0.3 0.8 0.5 0.5 0.3 0.3
Portion of rent expense representative of
an interest factor 1.9 8.3 7.6 8.0 7.6 6.8
Equity of (earnings) losses of affiliates
accounted for on the equity method 0.3 0.8 0.9 0.9 0.7 0.1
----- ------ ----- ----- ----- ------
EARNINGS AS ADJUSTED $46.1 $176.5 $73.2 $72.0 $95.0 $134.9
===== ====== ===== ===== ===== ======
COMPUTATION OF FIXED CHARGES:
Interest expense, net of capitalized interest $15.0 $ 58.0 $48.9 $48.2 $42.3 $ 23.5
Portion of rent expense representative of
an interest factor 1.9 8.3 7.6 8.0 7.6 6.8
Capitalized interest 0.3 0.6 5.0 3.8 2.1 1.6
----- ------ ----- ----- ----- ------
FIXED CHARGES $17.2 $ 66.9 $61.5 $60.0 $52.0 $ 31.9
===== ====== ===== ===== ===== ======
RATIO OF EARNINGS TO FIXED CHARGES: 2.68 2.64 1.19 1.20 1.83 4.23
==== ==== ==== ==== ==== ====
</TABLE>
<PAGE> 2
THE B.F.GOODRICH COMPANY
COMPUTATION OF PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
(in millions, except for ratios)
The following computations for the three months ended March 31, 1995 and the
year ended December 31, 1994 reflect, on a pro forma basis, earnings available
for fixed charges, fixed charges and the resultant ratio.
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED
ENDED DECEMBER 31,
MARCH 31, 1995 1994
-------------- ------------
<S> <C> <C>
EARNINGS AS ADJUSTED $46.1 $176.5
------ -------
FIXED CHARGES $17.2 $ 66.9
Pro forma adjustments:
Dividend requirement of the quarterly
income preferred securities offered hereby 2.3 9.4
------ -------
PRO FORMA FIXED CHARGES $19.5 $ 76.3
====== =======
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES 2.36 2.31
------ -------
</TABLE>
<PAGE> 1
EXHIBIT 12.2
THE B.F.GOODRICH COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(In millions, except for ratios)
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED ----------------------------------------------------
MARCH 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
COMPUTATION OF EARNINGS:
Income from continuing operations before
income taxes and cumulative effect of
change in accounting method $28.6 $108.6 $15.3 $14.4 $44.1 $104.2
Add (Deduct):
Interest expense, net of capitalized interest 15.0 58.0 48.9 48.2 42.3 23.5
Amortization of interest previously capitalized 0.3 0.8 0.5 0.5 0.3 0.3
Portion of rent expense representative of
an interest factor 1.9 8.3 7.6 8.0 7.6 6.8
Equity of (earnings) losses of affiliates
accounted for on the equity method 0.3 0.8 0.9 0.9 0.7 0.1
----- ------ ----- ----- ----- ------
EARNINGS AS ADJUSTED $46.1 $176.5 $73.2 $72.0 $95.0 $134.9
===== ====== ===== ===== ===== ======
COMPUTATION OF FIXED CHARGES
AND PREFERRED DIVIDENDS:
Preferred dividend requirements $ 1.9 $ 8.0 $ 8.2 $ 8.3 $ 8.3 $ 8.5
Greater of effective federal income tax rate of
statutory income tax rate* 38.5% 39.5% 35.0% 34.0% 51.0% 34.0%
Preferred dividend requirements on a pretax basis 3.1 13.2 12.6 12.6 16.9 12.9
Interest expense, net of capitalized interest 15.0 58.0 48.9 48.2 42.3 23.5
Portion of rent expense representative of
an interest factor 1.9 8.3 7.6 8.0 7.6 6.8
Capitalized interest 0.3 0.6 5.0 3.8 2.1 1.6
----- ------ ----- ----- ----- ------
FIXED CHARGES AND PREFERRED DIVIDEND $20.3 $ 80.1 $74.1 $72.6 $68.9 $ 44.8
===== ====== ===== ===== ===== ======
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS 2.27 2.20 1.38 3.01
===== ====== ===== ======
DEFICIENCY $(0.9) $(0.6)
===== =====
* The Company's effective tax rate was lower than the statutory rate in 1990, 1992 and 1993. Therefore, for purposes of this
computation, the statutory tax rate was used in 1990, 1992 and 1993.
</TABLE>
<PAGE> 2
THE B.F.GOODRICH COMPANY
COMPUTATION OF PRO FORMA RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERRED DIVIDENDS
(In millions, except for ratios)
The following computations for the three months ended March 31, 1995 and the
year ended December 31, 1994 reflect, on a pro forma basis, earnings available
for fixed charges and preferred dividends, fixed charges and preferred
dividends, and the resultant ratio.
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED
ENDED DECEMBER 31,
MARCH 31, 1995 1994
-------------- ------------
<S> <C> <C>
EARNINGS AS ADJUSTED $46.1 $176.5
---------- ----------
FIXED CHARGES AND PREFERRED DIVIDEND $20.3 $ 80.1
Pro forma adjustments
Dividend requirement of the quarterly income
preferred securities offered hereby 2.3 9.4
Dividend reduction attributable to the
retirement of the Series D preferred stock (3.1) (13.2)
---------- ----------
PRO FORMA FIXED CHARGES AND
PREFERRED DIVIDENDS $19.5 $ 76.3
---------- ----------
PRO FORMA RATIO OF EARNINGS TO FIXED
CHARGES AND PREFERRED DIVIDENDS 2.36 2.31
========== ==========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 Nos. 33-00000 and 33-00000-01) and related
Prospectus of The B.F.Goodrich Company and BFGoodrich Capital for the
registration of 5,060,000 Quarterly Income Preferred Securities and to the
incorporation by reference therein of our report dated February 3, 1995 with
respect to the consolidated financial statements of The B.F.Goodrich Company
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
May 31, 1995
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints D. Lee Tobler, Jon V. Heider and Nicholas J.
Calise, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and revocation, in his or her name and
on his or her behalf, to do any and all acts and things and to execute any and
all instruments which they may deem necessary or advisable to enable The
B.F.Goodrich Company (the "Company") to comply with the Securities Act of 1933
(the "Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of (i) preferred securities ("QIPS") to be issued by a
special-purpose trust or limited partnership, (ii) the guarantee under
certain circumstances by the Company of the QIPS and (iii) junior
subordinated debt to be issued by the Company in an aggregate principal amount
not to exceed $126.5 million, including power and authority to sign his or her
name in any and all capacities (including his or her capacity as a Director
and/or Officer of the Company) to one or more registration statements on Form
S-3, or such other available form as may be approved by officers of the
Company, and to any and all amendments, including post-effective amendments, to
such registration statements, and to any and all instruments or documents filed
as part of or in connection with such registration statements or any amendments
thereto; and the undersigned hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents the
respective date indicated.
<TABLE>
<S> <C>
/s/Jeanette Grasselli Brown 5/24/95 /s/George A. Davidson, Jr. 5/25/95
- --------------------------------------------- --------------------------------------------
(Jeanette Grasselli Brown) (George A. Davidson, Jr.)
Director Director
/s/James J. Glasser 5/25/95 /s/Thomas H. O'Leary 5/25/95
- --------------------------------------------- --------------------------------------------
(James J. Glasser) (Thomas H. O'Leary)
Director Director
/s/John D. Ong 5/25/95 /s/Joseph A. Pichler 5/25/95
- --------------------------------------------- ---------------------------------------------
(John D. Ong) (Joseph A. Pichler)
Chairman of the Board, Chief Executive Director
Officer, President and Director
(Principal Executive Officer)
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
/s/Alfred M. Rankin, Jr. 5/26/95 /s/Steven G. Rolls 5/25/95
- --------------------------------------------- ---------------------------------------------
(Alfred M. Rankin, Jr.) (Steven G. Rolls)
Director Vice President and Controller
(Principal Accounting Officer)
/s/Ian M. Ross 5/25/95 /s/D. Lee Tobler 5/24/95
- --------------------------------------------- ---------------------------------------------
(Ian M. Ross) (D. Lee Tobler)
Director Executive Vice President
and Director
(Principal Financial Officer)
/s/William L. Wallace 5/26/95 5/ /95
- --------------------------------------------- ---------------------------------------------
(William L. Wallace) (John L. Weinberg)
Director Director
/s/A. Thomas Young 5/25/95
- ---------------------------------------------
(A. Thomas Young)
Director
</TABLE>
<PAGE> 1
Exhibit 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) / /
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE B.F.GOODRICH COMPANY
(Exact name of obligor as specified in its charter)
New York 34-0252680
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3925 Embassy Parkway
Akron, Ohio 44333-1799
(Address of principal executive offices) (Zip code)
----------------------
% Junior Subordinated Debentures, Series A
(Title of the 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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 1st day of June, 1995.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
--------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
<PAGE> 5
Exhibit 7
================================================================================
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1995,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and
coin .................................................. $ 3,575,856
Interest-bearing balances ............................... 747,540
Securities:
Held-to-maturity securities ............................. 1,283,680
Available-for-sale securities ........................... 1,615,292
Federal funds sold in domestic offices of the bank ........ 5,577,896
Loans and lease financing receivables:
Loans and leases, net of unearned income .... 24,763,265
LESS: Allowance for loan and lease losses ... 532,411
LESS: Allocated transfer risk reserve ....... 28,558
Loans and leases, net of unearned income,
allowance, and reserve ................................ 24,202,296
Assets held in trading accounts ........................... 1,502,750
Premises and fixed assets (including capitalized
leases) ................................................. 618,958
Other real estate owned ................................... 47,755
Investments in unconsolidated subsidiaries and
associated companies .................................... 184,149
Customers' liability to this bank on acceptances
outstanding ............................................. 1,018,696
Intangible assets ......................................... 101,149
Other assets .............................................. 1,227,291
===========
Total assets .............................................. $41,703,316
===========
LIABILITIES
Deposits:
In domestic offices ..................................... $18,543,633
Noninterest-bearing ......................... 6,949,896
Interest-bearing ............................ 11,593,737
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ................................ 11,303,075
Noninterest-bearing ......................... 65,927
Interest-bearing ............................ 11,237,148
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased ................................. 1,327,537
Securities sold under agreements to repurchase .......... 37,400
Demand notes issued to the U.S. Treasury .................. 97,827
Trading liabilities ....................................... 1,349,293
Other borrowed money:
With original maturity of one year or less .............. 2,027,148
With original maturity of more than one year ............ 313,877
Bank's liability on acceptances executed and
outstanding ............................................. 1,018,848
Subordinated notes and debentures ......................... 1,056,320
Other liabilities ......................................... 1,435,093
===========
Total liabilities ......................................... 38,510,051
===========
EQUITY CAPITAL
Common stock .............................................. 942,284
Surplus ................................................... 525,666
Undivided profits and capital reserves .................... 1,753,592
Net unrealized holding gains (losses) on
available-for-sale securities ........................... ( 22,501)
Cumulative foreign currency translation adjustments ....... ( 5,776)
===========
Total equity capital ...................................... 3,193,265
===========
Total liabilities and equity capital ...................... $41,703,316
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller 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.
Robert E. Keilman
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 is true and
correct.
-
Thomas A. Renyi -
J. Carter Bacot - Directors
Alan R. Griffith -
-
================================================================================
<PAGE> 1
Exhibit 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) / /
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
BFGOODRICH CAPITAL
(Exact name of obligor as specified in its charter)
Delaware 34-7031378
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3925 Embassy Parkway
Akron, Ohio 44333-1799
(Address of principal executive offices) (Zip code)
---------------
% Cumulative Quarterly Income Preferred Securities, Series A
(Title of the 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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 1st day of June, 1995.
THE BANK OF NEW YORK
By:/s/ MARY JANE MORRISSEY
--------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
<PAGE> 5
Exhibit 7
================================================================================
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1995, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................ $ 3,575,856
Interest-bearing balances ......................................... 747,540
Securities:
Held-to-maturity securities ....................................... 1,283,680
Available-for-sale securities ..................................... 1,615,292
Federal funds sold in domestic offices of the bank .................. 5,577,896
Loans and lease financing receivables:
Loans and leases, net of unearned income ............. 24,763,265
LESS: Allowance for loan and lease losses ............ 532,411
LESS: Allocated transfer risk reserve ................ 28,558
Loans and leases, net of unearned income, allowance, and reserve... 24,202,296
Assets held in trading accounts ..................................... 1,502,750
Premises and fixed assets (including capitalized leases) ............ 618,958
Other real estate owned ............................................. 47,755
Investments in unconsolidated subsidiaries and associated companies.. 184,149
Customers' liability to this bank on acceptances outstanding ........ 1,018,696
Intangible assets ................................................... 101,149
Other assets ........................................................ 1,227,291
-----------
Total assets ........................................................ $41,703,316
===========
LIABILITIES
Deposits:
In domestic offices ............................................... $18,543,633
Noninterest-bearing .................................. 6,949,896
Interest-bearing ..................................... 11,593,737
In foreign offices, Edge and Agreement subsidiaries, and IBFs ..... 11,303,075
Noninterest-bearing .................................. 65,927
Interest-bearing ..................................... 11,237,148
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ........................................... 1,327,537
Securities sold under agreements to repurchase .................... 37,400
Demand notes issued to the U.S. Treasury ............................ 97,827
Trading liabilities ................................................. 1,349,293
Other borrowed money:
With original maturity of one year or less ........................ 2,027,148
With original maturity of more than one year ...................... 313,877
Bank's liability on acceptances executed and outstanding ............ 1,018,848
Subordinated notes and debentures ................................... 1,056,320
Other liabilities ................................................... 1,435,093
-----------
Total liabilities ................................................... 38,510,051
===========
EQUITY CAPITAL
Common stock ........................................................ 942,284
Surplus ............................................................. 525,666
Undivided profits and capital reserves .............................. 1,753,592
Net unrealized holding gains (losses) on available-for-sale
securities ........................................................ (22,501)
Cumulative foreign currency translation adjustments ................. (5,776)
-----------
Total equity capital ................................................ 3,193,265
-----------
Total liabilities and equity capital ................................ $41,703,316
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller 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.
Robert E. Keilman
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 is true and
correct.
_
Thomas A. Renyi _
J. Carter Bacot _ Directors
Alan R. Griffith _
_
<PAGE> 1
Exhibit 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) /__/
----------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------------
THE B.F.GOODRICH COMPANY
(Exact name of obligor as specified in its charter)
New York 34-0252680
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3925 Embassy Parkway
Akron, Ohio 44333-1799
(Address of principal executive offices) (Zip code)
----------------------------
The B.F.Goodrich Company Guarantee with respect to BFGoodrich Capital _%
Cumulative Quarterly Income Preferred Securities, Series A
(Title of the 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.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24 OF THE
COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 1st day of June, 1995.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
--------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
<PAGE> 5
Exhibit 7
================================================================================
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1995, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ....... $ 3,575,856
Interest-bearing balances ................................ 747,540
Securities:
Held-to-maturity securities .............................. 1,283,680
Available-for-sale securities ............................ 1,615,292
Federal funds sold in domestic offices of the bank ........ 5,577,896
Loans and lease financing receivables:
Loans and leases, net of unearned income .......24,763,265
LESS: Allowance for loan and lease losses .........532,411
LESS: Allocated transfer risk reserve ..............28,558
Loans and leases, net of unearned income, allowance,
and reserve............................................ 24,202,296
Assets held in trading accounts ............................ 1,502,750
Premises and fixed assets (including capitalized leases) 618,958
Other real estate owned .................................... 47,755
Investments in unconsolidated subsidiaries and associated
companies ................................................ 184,149
Customers' liability to this bank on acceptances
outstanding .............................................. 1,018,696
Intangible assets .......................................... 101,149
Other assets ............................................... 1,227,291
-----------
Total assets ............................................... $41,703,316
===========
LIABILITIES
Deposits:
In domestic offices ...................................... $18,543,633
Noninterest-bearing .............................6,949,896
Interest-bearing ...............................11,593,737
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ......................... 11,303,075
Noninterest-bearing ................................65,927
Interest-bearing ...............................11,237,148
Federal funds purchased and securities sold under
agreements to re-purchase in domestic offices of the
bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased .................................. 1,327,537
Securities sold under agreements to repurchase ........... 37,400
Demand notes issued to the U.S. Treasury ................... 97,827
Trading liabilities......................................... 1,349,293
Other borrowed money:
With original maturity of one year or less ............... 2,027,148
With original maturity of more than one year ............. 313,877
Bank's liability on acceptances executed
and outstanding ........................................ 1,018,848
Subordinated notes and debentures .......................... 1,056,320
Other liabilities .......................................... 1,435,093
-----------
Total liabilities .......................................... 38,510,051
-----------
EQUITY CAPITAL
Common stock ............................................... 942,284
Surplus .................................................... 525,666
Undivided profits and capital reserves ..................... 1,753,592
Net unrealized holding gains (losses) on
available-for-sale securities ............................ ( 22,501)
Cumulative foreign currency translation adjustments ........ ( 5,776)
-----------
Total equity capital ....................................... 3,193,265
-----------
Total liabilities and equity capital ....................... $41,703,316
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller 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.
Robert E. Keilman
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 is true and
correct.
_
Thomas A. Renyi _
J. Carter Bacot _ Directors
Alan R. Griffith _
_
