<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 6, 1996
Commission Registrant, State of Incorporation, IRS Employer
File Number Address, and Telephone Number Identification No.
- ----------- ----------------------------------- ------------------
0-7862 AMERCO 88-0106815
(A Nevada Corporation)
1325 Airmotive Way, Ste. 100
Reno, Nevada 89502-3239
Telephone (702) 688-6300
2-38498 U-Haul International, Inc. 86-0663060
(A Nevada Corporation)
2727 N. Central Avenue
Phoenix, Arizona 85004
Telephone (602) 263-6645
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
As disclosed in the Company's Prospectus dated September 10, 1996 and
in the Company's Annual Report on Form 10-K for the year ended March 31, 1996,
the Company is in the process of satisfying a judgment arising out of a lawsuit
brought by certain significant shareholders of the Company against certain of
its current and former directors (the "Shoen Litigation"). The Company satisfied
the judgment with respect to two of the plaintiffs in that action on September
6, 1996 by paying Katabasis International, Inc. ("Katabasis") approximately
$27.5 million to repurchase 4,041,924 shares of Common Stock and by paying
damages of approximately $74.8 million and statutory post-judgment,
pre-bankruptcy petition date interest of $224,000 to Samuel W. Shoen (the sole
voting stockholder of Katabasis). On the same date, the Company also funded
approximately $15.7 million of post-bankruptcy petition date interest on the
above amounts into an escrow account pending the outcome of a dispute involving
the entitlement of all of the plaintiffs in the Shoen Litigation to
post-bankruptcy petition date interest.
The Company will repurchase an additional 6,052,928 shares of its
Common Stock on or before October 1, 1996 in satisfaction of the judgment in the
Shoen Litigation. The Company has previously repurchased 12,202,048 shares of
Common Stock from five of the plaintiffs in the lawsuit (including Katabasis) in
satisfaction of their claims. After completing all of these repurchases, the
Company will have acquired approximately 47.3% of its outstanding Common Stock.
The Company will acquire the remaining shares of Common Stock and will
satisfy the remainder of the judgment in full with the payment of approximately
$153.5 million, plus interest if ultimately awarded. The Company has sold
mortgage notes for proceeds of $83.5 million and has completed a $97.4 million
sale and subsequent leaseback of rental trailers to raise a portion of the cash
used to make the stock purchases to date. The remainder of the cash necessary to
satisfy the judgment will be raised from the sale of surplus or non-essential
assets including real estate and mortgage notes, from internally generated funds
and, to the extent necessary, from additional borrowings under the Company's
existing credit agreements.
In order to comply with covenants in the Company's current credit
agreements and to improve the likelihood that its existing debt ratings will be
maintained, the Company increased its equity by selling $100.0 million of its
Series B Convertible Preferred Stock in a private placement.
As a result of funding the repurchase, the Company will incur
additional costs in the future in the form of lease payments and/or interest.
Furthermore, following the repurchase, the Company's outstanding Common Stock
will be reduced by 6,052,928 shares in addition to the 12,202,048 shares
repurchased from the plaintiffs to date. In addition, the Company plans to
deduct for income tax
1
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purposes approximately $324.0 million of the payments already made and remaining
to be made by the Company to the plaintiffs, which will reduce the Company's
income tax liability. While the Company believes that such income tax deductions
are appropriate, there can be no assurance that any such deductions ultimately
will be allowed in full.
Furthermore, in the event the fair value of the consideration paid by
the Company to the plaintiffs is in excess of the fair value of the stock
repurchased by the Company, the Company will be required to record an expense
equal to that difference. No such expense was recorded for the previous
transactions with the plaintiffs and no provision has been made in the Company's
financial statements for any payments to be made to the plaintiffs in the
future. For the reasons set forth above, the repurchase could result in material
changes in the Company's financial condition, results of operations, cash flow,
capital expenditure plans, net income, or earnings per common share.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
<TABLE>
<CAPTION>
<S> <C>
Exhibit
Number Description
------- -----------
1.1 Distribution Agreement, dated September 10, 1996
4.1 Indenture, dated September 10, 1996
4.2 Form of Debt Securities (included in Exhibit 4.3)
4.3 First Supplemental Indenture, dated September 10, 1996
</TABLE>
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERCO
----------------------------------
(Registrant)
Date September 19, 1996 /s/ Gary V. Klinefelter
------------------ ----------------------------------
Gary V. Klinefelter, Secretary
(Signature)
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U-Haul International, Inc.
----------------------------------
(Registrant)
Date September 19, 1996 /s/ Gary V. Klinefelter
------------------ ----------------------------------
Gary V. Klinefelter, Secretary
(Signature)
4
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EXHIBIT 1.1
$600,000,000
AMERCO
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
September 10, 1996
Lehman Brothers, Inc.
Chase Securities Inc.
Citicorp Securities, Inc.
Morgan Stanley & Co. Incorporated
NationsBanc Capital Markets, Inc.
Salomon Brothers Inc
as Agents
c/o Lehman Brothers, Inc.
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
AMERCO, a Nevada corporation (the "Company"), confirms its agreement
with each of you (individually, an "Agent" and, collectively, the "Agents") with
respect to the issuance and sale by the Company of up to an aggregate of
$600,000,000 in gross proceeds of its Medium-Term Notes (the "Notes"). The Notes
are to be issued from time to time pursuant to an indenture, dated as of
September 10, 1996 (as it may be supplemented or amended from time to time, the
"Indenture"), between the Company and The First National Bank of Chicago, as
trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a), as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures (as defined in Section 2(f)). This Agreement shall only apply
to sales of the Notes and not to sales of any other securities or evidence of
indebtedness of the Company and shall apply only on the specific terms set forth
herein.
Subject to the terms and conditions of this Agreement and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, and to designate and select additional agents in accordance with Section
2(a), the Company hereby (i) appoints each of the Agents as the agent of the
Company during each Marketing Period (as defined in Section 1(b)) for the
purpose of soliciting and receiving offers to purchase Notes from the Company
and (ii) agrees that whenever the Company determines to sell Notes directly to
an Agent as principal it will enter into a separate agreement (each a "Purchase
Agreement"). Each such Purchase Agreement, whether oral (and confirmed in
writing in
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2
accordance with Section 2(e)) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C, relating to such sale in
accordance with Section 2(e).
1. Representations and Warranties of the Company. The Company
represents and warrants to each Agent as of the date of this Agreement, as of
the Closing Date (defined herein) and as of the times referred to in Sections
6(a) and 6(b) (the Closing Date and each such time being hereinafter sometimes
referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 333-10119) with
respect to the Notes has (i) been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
and (ii) been filed with the Commission under the Securities Act. Such
registration statement has become effective under the Securities Act. If
any post-effective amendment to such registration statement has been filed
with the Commission prior to the Representation Date, the most recent such
amendment has been declared effective by the Commission. Copies of such
registration statement and any amendments thereto have been delivered by
the Company to the Agents.
As used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; and
"Effective Date" means the date of the Effective Time. As provided in
Section 3(a), a prospectus supplement reflecting the terms of the Notes,
the terms of the offering thereof and the other matters set forth therein
has been prepared and will be filed pursuant to Rule 424 under the
Securities Act ("Rule 424"). In addition, a preliminary prospectus
supplement reflecting the terms of the Notes, the terms of the offering
thereof, and the other matters set forth therein also may be prepared and
filed pursuant to Rule 424. Such prospectus supplement, in the form filed
on or after the date of this Agreement pursuant to Rule 424, is referred to
in this Agreement as the "Prospectus Supplement", and any such preliminary
prospectus supplement in the form filed after the date of this Agreement
pursuant to Rule 424 is referred to as the "Preliminary Prospectus
Supplement". Any prospectus accompanied by a Preliminary Prospectus
Supplement is referred to in this Agreement, collectively with such
Preliminary Prospectus Supplement, as a "Preliminary Prospectus". The
registration statement referred to in this Section 1(a), as amended at the
time of the applicable Representation Date, including the exhibits thereto
and the documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
any exhibits thereto, that are incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents"), is called the "Registration Statement"); and the basic
prospectus included therein relating to all offerings of securities under
the Registration Statement, as supplemented by the Prospectus Supplement or
a Pricing Supplement, is called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424, the
term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either
case including the Incorporated Documents. Any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents 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. Notwithstanding the foregoing, any prospectus
supplement prepared or filed with respect to an offering pursuant to the
Registration Statement of securities other than the Notes shall not be
deemed to have supplemented the Prospectus.
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3
The Commission has not issued any order suspending the effectiveness of
the Registration Statement, and no stop order has been issued or threatened
by the Commission.
(b) The Registration Statement conformed, on the Effective Date or
(with respect to Incorporated Documents) on the date of filing thereof with
the Commission, in all material respects, to the requirements of the
Securities Act and the Rules and Regulations, and the Registration
Statement on the Effective Date did not contain and at the Time of Delivery
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; and on each Representation Date and at
all times during each period during which, in the opinion of counsel for
the Agents, a prospectus relating to the Notes is required to be delivered
under the Securities Act (each a "Marketing Period") and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Prospectus will
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations, and the Prospectus on such date or at such
times did not contain and at the Time of Delivery will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; 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 Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and did not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
on the Effective Date and the Closing Date, respectively, the Indenture
conformed and will conform in all material respects with the requirements
of the Trust Indenture of 1939, as amended (the "Trust Indenture Act"), and
the applicable rules and regulations thereunder; provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of any Agent specifically for inclusion therein (which
information shall be determined as set forth in Section 7(b)) or (ii) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
(c) Price Waterhouse LLP, whose report is incorporated by reference in
the Prospectus, are independent certified public accountants as required by
the Securities Act. The financial statements and schedules (including the
related notes and supporting schedules) included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial condition, results of operations and changes in financial
condition of the entities purported to be shown thereby at the dates and
for the periods indicated and have been prepared in accordance with
generally accepted accounting principles.
(d) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its organization, with full power and authority
(corporate and other) to own or lease its properties and conduct its
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4
business as described in the Prospectus and is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it make such qualification necessary, except where the
failure so to qualify would not have a material adverse effect on the
condition (financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole; and none of
the subsidiaries of the Company, other than any so identified in Schedule I
to this Agreement, is a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations under the Securities Act.
(e) All of the issued shares of capital stock of each significant
subsidiary (as such term is defined in Rule 405 of the Rules and
Regulations under the Securities Act) of the Company have been duly and
validly authorized and issued and are fully paid, non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) Each of this Agreement and each applicable Purchase Agreement has
been duly authorized, executed and delivered by the Company and constitutes
the valid and binding agreement of the Company and is enforceable against
the Company in accordance with its terms.
(g) Except as described in or contemplated by the Prospectus, there has
not been any material adverse change in, or adverse development which
materially affects, the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole, from the date as of which information is
given in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under its respective articles or certificate of incorporation or
by-laws, or any bond, debenture, note or any other evidence of indebtedness
or any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them is bound, or to which any of their properties is
subject, where such violation or default would have a material adverse
effect on the condition (financial or other), results of operations,
assets, business or prospects of the Company and its subsidiaries taken as
a whole. The execution and delivery, fulfillment and consummation of the
transactions contemplated by this Agreement, each applicable Purchase
Agreement, the Notes and the Indenture will not conflict with or constitute
a breach of, or a default (with the passage of time or the giving of notice
or otherwise) under, or result in the imposition of a lien on any
properties of the Company or any of its subsidiaries, or an acceleration of
indebtedness pursuant to, the articles or certificate of incorporation or
by-laws of the Company or any of its subsidiaries, or any bond, debenture,
note or any other evidence of indebtedness of any indenture, mortgage, deed
of trust or other material agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them is bound,
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, or any law, rule, administrative regulation, order
or decree of any court or any governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of their
respective properties. Except for the orders of the Commission declaring
the Registration Statement effective under the Securities Act and permits
and similar authorizations required under the securities or "Blue Sky" laws
of certain jurisdictions, no consent, approval, authorization or order of
any court, governmental agency or body or financial institution is required
in connection with the consummation of the transactions contemplated by
this Agreement, each applicable Purchase Agreement, the Notes and the
Indenture.
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5
(i) Subsequent to the respective dates as of which information is given
in the Registration Statement, any Preliminary Prospectus and Prospectus
and prior to the Closing Date, neither the Company nor any of its
subsidiaries has incurred or will have incurred any liabilities or
obligations for borrowed money, direct or contingent, or entered into any
transactions not in the ordinary course of business which would have a
material adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole.
(j) The Company and each of its subsidiaries owns, or has valid rights
to use in the manner currently used or proposed to be used, all items of
real and personal property which are material and which they reasonably
believe are necessary to the business of the Company and its subsidiaries
taken as a whole (including without limitation all U-Haul Centers,
manufacturing facilities, assembly facilities and service centers described
or referred to in the Prospectus), free and clear of all liens,
encumbrances and claims which may materially interfere with the use thereof
or have a material adverse effect on the condition (financial or other),
results of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole.
(k) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company or any of its subsidiaries is
a party or to which any property of the Company or any of its subsidiaries
is subject or which is pending or, to the knowledge of the Company,
contemplated against the Company or any of its subsidiaries which might
result in any material adverse change in the condition (financial or
other), results of operations, assets, business or prospects of the Company
and its subsidiaries taken as a whole.
(l) Neither the Company nor any of its subsidiaries is in violation of
any law, ordinance, governmental rule or regulation or court decree to
which it may be subject which might have a material adverse effect on the
condition (financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole.
(m) All licenses, permits or registrations required for the business of
the Company and each of its subsidiaries, as presently conducted and
proposed to be conducted, under any federal, state or local laws,
regulations or ordinances (including those related to consumer protection,
protection of the environment and regulation of franchising) have been
obtained or made, other than any such licenses, permits or registrations,
the failure of which to obtain or make, either individually or in the
aggregate, would not have a material adverse effect on the condition
(financial or other), results of operations, assets, business or prospects
of the Company and its subsidiaries taken as a whole, and each of the
Company and its subsidiaries is in compliance with all such licenses,
permits or registrations.
(n) Except as disclosed in the Prospectus, the Company and its
subsidiaries comply in all material respects with all Environmental Laws
(as defined below), except to the extent that failure to comply with such
Environmental Laws could not have a material adverse effect on the
condition (financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. Except as
disclosed in the Prospectus, neither the Company nor any of its
subsidiaries is the subject of any pending or threatened federal, state or
local investigation evaluating whether any remedial action by the Company
or any of its subsidiaries is needed to respond to a release of any
Hazardous Materials (as defined below) into the environment, resulting from
the Company's or any of its subsidiaries' business properties or assets or
is in contravention of any Environmental Law that could have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the
<PAGE> 6
6
Company and its subsidiaries taken as a whole. Except as disclosed in the
Prospectus, neither the Company nor any of its subsidiaries has received
any notice or claim, nor are there pending or threatened lawsuits against
them, with respect to violations of any Environmental Law or in connection
with any release of any Hazardous Material into the environment that, in
the aggregate, if the subject of any unfavorable decision, ruling or
finding, could have a material adverse effect on the condition (financial
or other), results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole. As used herein,
"Environmental Laws" means any federal, state or local law, regulation,
permit, rule or order of any governmental authority, administrative body or
court applicable to the Company's or any of its subsidiaries' business
operations or the ownership or possession of any of their properties or
assets relating to environmental matters, and "Hazardous Materials" means
those substances that are regulated by or form the basis of liability under
any Environmental Laws.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to include any securities owned or to be owned by such person among
the securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus or in Schedule II to this Agreement,
to require the Company to file any other registration under the Securities
Act (other than a registration statement on Form S-8) with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company under the
Securities Act.
(q) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been filed as exhibits to the
Registration Statement.
(r) No relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, which is required
to be described in the Prospectus and which is not so described.
(s) The Company is not required to be registered, and is not regulated,
as an "investment company" as such term is defined under the United States
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder (collectively, the "Investment Company Act").
(t) The Company is in compliance with all provisions of Section 1 of
Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba.
(u) The Company has all of the requisite corporate power and authority
to execute, issue and deliver the Notes and to incur and perform its
obligations provided for therein; the Notes have been duly authorized by
the Company and, when executed and authenticated in accordance with the
provisions of this Agreement, any applicable Purchase Agreements and the
Indenture and delivered to and paid for by the Agents as provided for in
this Agreement, will have been duly executed, authenticated (assuming due
authentication by the Trustee), issued and delivered and will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their terms; and the Notes conform in all material respects to the
description thereof contained in the Prospectus.
(v) The Company has all of the requisite corporate power and authority
to execute and deliver the Indenture and to perform its obligations
provided for therein; the Indenture has been
<PAGE> 7
7
duly authorized by the Company and has been duly qualified under the Trust
Indenture Act, will be substantially in the form heretofore delivered to
the Agents and, upon due execution and delivery by the Company, and
assuming due execution and delivery by the Trustee, will constitute a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms; and the Indenture conforms in all
material respects to the description thereof contained in the Prospectus.
2. Solicitations as Agent; Purchases as Principal.
(a) Appointment. Subject to the terms and conditions of this Agreement,
the Company hereby appoints each of the Agents as one of the exclusive
agents of the Company (subject to the provisions of the following
paragraph) for the purpose of soliciting or receiving offers to purchase
the Notes from the Company by others. On the basis of the representations
and warranties in this Agreement, but subject to the terms and conditions
of this Agreement, each Agent agrees, as one of the exclusive agents of the
Company (subject to the provisions of the following paragraph), to use its
reasonable best efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus. In connection therewith,
each Agent will use the Prospectus (as amended or supplemented from time to
time) in the form most recently furnished to such Agent by the Company and
will solicit offers to purchase the Notes in accordance with the Securities
Act, the Rules and Regulations and the applicable securities laws or
regulations of any other applicable jurisdiction in which such Agent
solicits offers to purchase any Note.
The Company may, from time to time, solicit or accept offers to
purchase Notes otherwise than through one of the Agents; provided, however,
that so long as this Agreement shall remain in effect, the Company shall
not, without the prior written consent of each Agent, solicit or accept
offers to purchase Notes through any additional agent other than an Agent,
unless such additional agent becomes a party to this Agreement or an
agreement setting forth the same commissions and otherwise containing terms
and conditions that are substantially the same as those then in effect
under this Agreement; provided, further, that the Company expressly
reserves the right to sell Notes directly to investors, in which case the
Agents shall not receive any commission with respect to such sale. Each
Agent also may purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
Agents shall suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this Agreement, "business
day" shall mean any day which is not a Saturday or Sunday and which is not
a day on which The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by
Section 3(a) or 3(j), each Agent shall suspend its solicitation of offers
to purchase Notes until such time as the Company shall have furnished it
with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Section 3(a) or 3(j) and
shall have advised such Agent that such solicitation may be resumed.
<PAGE> 8
8
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission in the form of a discount or otherwise in accordance with the
schedule relating to each series of Notes set forth in Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit offers
to purchase the Notes only in such denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company. Each
Agent shall communicate to the Company promptly, orally or in writing, each
reasonable offer to purchase Notes received by it as an Agent. The Company
shall have the sole right to accept offers to purchase the Notes and may
reject any such offer in whole or in part. Each Agent shall have the right,
in its discretion reasonably exercised without advising the Company, to
reject any offer to purchase the Notes received by it, in whole or in part,
and any such rejection shall not be deemed a breach of its agreement
contained herein.
In connection with the solicitation of offers to purchase Notes,
the Agents are not authorized to provide to any person any written
information relating to the Company other than the Prospectus and the
Incorporated Documents. No Note which the Company has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased and paid
for or sold by the Company until such Note shall have bene delivered to the
purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance
with the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agent and the Company) or in writing, which
will provide for the sale of such Notes to, and the purchase thereof by,
such Agent. A Purchase Agreement also may specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of
any Agent to purchase Notes from the Company as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company contained in this Agreement and shall be subject to the terms and
conditions of this Agreement. Each Purchase Agreement shall specify the
principal amount and terms of the Notes to be purchased by an Agent, the
time and date (each such time and date being referred to herein as a "Time
of Delivery") and place of delivery of and payment for such Notes and such
other information (as applicable) as is set forth in Exhibit C. The Company
agrees that if any Agent purchases Notes as principal for resale such Agent
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with Exhibit
A. Any Agent may utilize a selling or dealer group in connection with the
resale of such Notes. In addition, the Agents may offer the Notes they have
purchased as principal to other broker-dealers. Any Agent may sell Notes to
any broker-dealer at a discount and may reallow to any broker-dealer any
portion of the discount payable. Such Purchase Agreement also shall specify
any requirements for delivery of opinions of counsel, accountants' letters
and officers' certificates pursuant to Section 5(m).
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B and may be
amended in writing from time to time by the Agents and the Company. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in this
Agreement and in the Procedures. The Procedures shall apply to all
transactions contemplated hereunder,
<PAGE> 9
9
including sales of Notes to any Agent as principal pursuant to a Purchase
Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 shall be delivered at the offices of Milbank, Tweed, Hadley &
McCloy, not later than 10:00 A.M., New York City time, on the date of this
Agreement or at such later time as may be mutually agreed upon by the
Company and the Agents, which in no event shall be later than the time at
which the Agents commence solicitation of offers to purchase Notes
hereunder (the "Closing Date").
3. Covenants of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Agents and to
file such Prospectus, including the Prospectus Supplement, (i) pursuant to
Rule 424(b) within the time period prescribed by the Rules and Regulations;
to notify the Agents, promptly after it receives notice, of the time when
the Registration Statement or any amendment thereto becomes effective or
promptly after the filing of any supplement or amendment to the Prospectus
(other than any Incorporated Document or any amendment or supplement
relating to an offering of securities other than the Notes or a Pricing
Supplement) and to furnish the Agents with copies thereof; to notify the
Agents, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Notes 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 the Prospectus or for additional information; to
notify the Agents promptly of any downgrading in the rating accorded the
Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations under the Securities Act, or any public
announcement that any such organization has under surveillance or review,
with possible negative implications, its rating of the Notes or any of the
Company's debt securities promptly after the Company learns of such
downgrading, proposal to downgrade or public announcement; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain the withdrawal of such order;
(b) To furnish promptly to each of the Agents and to counsel for the
Agents a copy of the Registration Statement as originally filed with the
Commission and each amendment thereto filed with the Commission, including
in each case all exhibits filed therewith;
(c) To furnish promptly to each of the Agents copies of the
Registration Statement, including all exhibits thereto, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such
documents (including the Incorporated Documents), in each case as soon as
available and in such quantities as are reasonably requested;
(d) To file promptly with the Commission during any Marketing Period
any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may be required by the Securities Act or
in the reasonable judgment of the Company or the Agents or that may be
requested by the Commission;
<PAGE> 10
10
(e) Prior to filing with the Commission during any Marketing Period any
(i) amendment to the Registration Statement or supplement to the Prospectus
required by the Rules and Regulations or (ii) any Prospectus required
pursuant to Rule 424 (other than any Incorporated Document or any amendment
or supplement relating to an offering of securities other than the Notes),
and promptly after filing with the Commission any Incorporated Document or
any amendment to any Incorporated Document, to furnish a copy thereof to
the Agents and counsel for the Agents;
(f) As soon as practicable, but not later than 18 months after the date
of each acceptance by the Company of an offer to purchase Notes, to make
generally available to its security holders and to the Agents an earnings
statement of the Company and its subsidiaries conforming with the
requirements of Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158), covering a period of at least 12 months
beginning on the first day of the first fiscal quarter of the Company
commencing after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the
date of such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of
such acceptance;
(g) For a period expiring on the earlier of (i) five years after the
applicable Representation Date and (ii) the last date on which any Note
sold pursuant to this Agreement is outstanding, to furnish to the Agents
copies of all materials furnished by the Company to its securityholders and
all public reports and all reports and financial statements furnished by
the Company to the principal national securities exchanges upon which the
securities of the Company may be listed pursuant to requirements of or
agreements with such exchanges or to the Commission pursuant to the
Exchange Act or the Rules and Regulations;
(h) Promptly from time to time, to take such action as the Agents
reasonably may request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the agents may request and to
comply with such laws so as to permit the continuance of sales and dealing
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Notes; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject;
(i) Between the date of a Purchase Agreement and the date of delivery
of the Notes with respect thereto, not to offer for sale, sell or cause to
be offered for sale or sold, without the prior written consent of each
Agent which is a party to such Purchase Agreement, any debt securities
which are substantially similar to the Notes other than borrowings under
your revolving credit agreements and lines of credit, the private placement
of securities and issuances of your commercial paper; provided, however,
that the foregoing covenant shall not apply to any sale and leaseback
financing with respect to rental trucks, trailers and related equipment
used by the Company in its operations;
(j) If, during any Marketing Period, any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend any Prospectus to
comply with the Securities Act, promptly to require the Agents, by written
notice, to suspend solicitation of
<PAGE> 11
11
purchases of the Notes; and, if the Company shall decide to amend or
supplement the Registration Statement or any Prospectus, to advise the
Agents promptly by telephone (with confirmation in writing) and to prepare
and file with the Commission promptly an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance; provided, however, that if during the period referred to above
any Agent shall own any Notes which it has purchased from the Company as
principal with the intention of reselling them and the Agent has held such
Notes for fewer than 180 days or the Company has accepted an offer to
purchase Notes but the related settlement has not occurred, the Company
shall promptly prepare and timely file with the Commission any amendment or
supplement to the Registration Statement or any Prospectus that may be
required by the Securities Act, in the judgment of the Company or the
Agents, or requested by the Commission;
(k) To prepare, with respect to any Notes to be sold through or to the
Agents pursuant to this Agreement, a Pricing Supplement with respect to
such Notes and to file such Pricing Supplement with the Commission pursuant
to Rule 424 under the Securities Act, in each case within the applicable
time period prescribed for such filing by the Rules and Regulations;
(l) If it commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission
or with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the Prospectus,
if any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, to provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department; and
(m) To take such steps as shall be necessary to ensure that neither the
Company nor any subsidiary shall become an "investment company" within the
meaning of such term under the Investment Company Act.
4. Expenses. The Company agrees to pay or cause to be paid (A) all
expenses (including any associated taxes) incurred in connection with the
authorization, issuance, sale and delivery of the Notes to the several Agents,
(B) all fees and expenses (including, without limitation, fees and expenses of
the Company's accountants and counsel and reasonable fees and expenses of
counsel to the Agents) in connection with the preparation, printing, filing,
delivery and shipping of the Registration Statement (including the financial
statements therein and all amendments and exhibits thereto), any Preliminary
Prospectus, the Prospectus and any amendments or supplements thereto and any
documents incorporated by reference into any of the foregoing and the printing,
delivery and shipping of this Agreement and other underwriting documents,
including, but not limited to, any required questionnaires, powers of attorney,
Blue Sky Memoranda or legal investment surveys, (C) all filing fees and fees and
expenses of counsel to the Agents incurred in connection with the qualification
of the Notes under state securities laws as provided in Section 3(h), (D) the
filing fee of the National Association of Securities Dealers, Inc., if any, and
fees and expenses of counsel to the Agents in connection with any application
to, and any review of the offering of the Notes conducted by, the National
Association of Securities Dealers, Inc., including the preparation of materials
therefor, (E) any applicable listing or other fees, (F) the cost and charges of
the Trustee, any paying agent, any calculation agent, any exchange rate agent
and any other agents appointed by the Company, and their respective counsels,
(G) any fees payable to rating agencies in connection with the rating of the
Notes, (H) all advertising expenses in connection with the offering of the Notes
incurred with the consent of the Company and (I) all other costs and expenses
incident to the performance of its obligations hereunder.
<PAGE> 12
12
5. Conditions of the Agents' Obligations. The obligation of the Agents,
as the agents of the Company, under this Agreement to solicit offers to purchase
the Notes, the obligations of any person who has agreed to purchase Notes to
make payment for and take delivery of Notes, and the obligation of any Agent to
purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy,
on each Representation Date, of the representations and warranties of the
Company contained in this Agreement, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
of this Agreement, to the performance by the Company of its obligations under
this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to the Notes 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 and in accordance
with Section 3(a) and 3(k); no stop order suspending the effectiveness of
the Registration Statement or any part thereof nor any order directed to
any document incorporated by reference in any Prospectus shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with. No order suspending
the sale of the Notes in any jurisdiction designated by the Agents pursuant
to Section 3(h) shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(b) No Agent shall have discovered and disclosed to the Company that
the Registration Statement or any Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, each Purchase
Agreement, if any, the Indenture, the Notes, the Registration Statement and
each Prospectus, and all other legal matters relating to this Agreement and
any Purchase Agreement, and the transactions contemplated hereby and
thereby, shall be satisfactory in all material respects to counsel for the
Agents, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(d) The Company shall have furnished to the Agents the opinion,
addressed to the Agents, of Snell & Wilmer L.L.P., counsel for the Company,
dated the Closing Date, to the effect that:
(i) each of the Company, Oxford Life Insurance Company, an Arizona
corporation, and Republic Western Insurance Company, an Arizona
corporation, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada or
the State of Arizona, as the case may be, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus and to carry out the transactions contemplated
hereunder, and each of the Nevada Subsidiaries (as hereinafter defined)
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of the State of Arizona;
<PAGE> 13
13
(ii) the Company's authorized, issued and outstanding capital
stock is as set forth in the Prospectus; the Notes conform to the
description thereof contained in the Prospectus; and, if the Notes are
to be listed on any securities exchange, authorization therefor has
been given, subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a preliminary
listing application and all required supporting documents with respect
to the Notes with such securities exchange and such counsel has no
reason to believe that the Notes will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, except
that (a) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be
brought; and the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of this Agreement, any
applicable Purchase Agreements and the Indenture and delivered to and
paid for by the Agents pursuant to any applicable Purchase Agreement
and this Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture,
except that (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (y) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceedings therefor may
be brought;
(iv) to the best knowledge of such counsel, there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
fairly summarize such matters;
(v) the Registration Statement has become effective under the
Securities Act; any required filing of the Basic Prospectus, any
Preliminary Prospectus and the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and the
Prospectus (other than with respect to financial statements and other
financial and statistical information, as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and the
Trust Indenture Act and the Rules and Regulations; and such counsel has
no reason to believe that at the Effective Date the Registration
Statement (other than with respect to financial statements and other
financial and statistical information, as to which such counsel need
express no opinion) contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading
<PAGE> 14
14
or that the Prospectus (other than with respect to financial statements
and other financial and statistical information, as to which such
counsel need express no opinion) at its date or at the Closing Date
included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(vi) this Agreement and any applicable Purchase Agreements have
been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or in any applicable Purchase
Agreements, except such as have been obtained under the Securities Act
and such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Notes by the
Agents and such other approvals (specified in such opinion) as have
been obtained;
(viii) neither the execution and delivery of the Indenture or the
issuance and sale of the Notes nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of the
terms hereof or thereof or of any applicable Purchase Agreements, will
(a) conflict with the articles or certificate of incorporation or
by-laws of the Company or any of its subsidiaries or (b) result in a
violation of any judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries, except
(with regard to clause (b)) for such violations as would not have a
material adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole;
(ix) the Indenture and the Notes conform in all material respects
to the descriptions thereof contained in the Prospectus;
(x) an Arizona court would give effect to the choice of New York
law in the Indenture; and
(xi) the Company is not, and is not directly or indirectly
controlled by, or acting on behalf of any person or entity which is, an
"investment company" within the meaning of the Investment Company Act.
In rendering such opinion, such counsel may rely, (A) as to
matters involving the application of laws of any jurisdiction other than
the State of Arizona, the State of Nevada or the United States, to the
extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agents, (B) as to matters involving the
application of the laws of the State of Nevada, upon the opinion delivered
pursuant to Section 5(e) and, (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and
public officials. Such counsel may assume, for the purposes of such opinion
and without investigation, that the substantive laws of the State of New
York do not materially differ from the substantive laws of the State of
Arizona, and such counsel need express no opinion as to the laws of New
York or their applicability to the matters covered by such opinion.
References to the Prospectus in this paragraph (d) include any supplements
thereto at the Closing Date.
<PAGE> 15
15
(e) The Agents shall have received on the Closing Date an opinion,
addressed to Snell & Wilmer L.L.P. and the Agents, of Lionel, Sawyer &
Collins, counsel for the Company, dated the Closing Date, to the effect
that:
(i) each of the Company, Amerco Real Estate Company, a Nevada
corporation, U-Haul International, Inc., a Nevada corporation,
Ponderosa Holdings, Inc., a Nevada corporation, and U-Haul Leasing and
Sales Co., a Nevada corporation (collectively, the "Nevada
Subsidiaries"), has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to carry out
the transactions contemplated hereunder and in the Prospectus;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming, in reliance upon the opinion
delivered pursuant to Section 5(g), that the Indenture is a legal,
valid and binding instrument enforceable against all parties thereto
under the laws of New York) constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except that (a) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceedings therefor may
be brought; and the Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of this Agreement,
any applicable Purchase Agreements and the Indenture and delivered to
and paid for by the Agents pursuant to any applicable Purchase
Agreement and this Agreement, will constitute legal, valid and binding
obligations of the Company (assuming, in reliance upon the opinion
delivered pursuant to Section 5(g), that each of the Notes is a legal,
valid and binding instrument enforceable against all parties thereto
under the laws of New York), except that (x) the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought;
(iii) no consent, approval, authorization or order of any court or
governmental agency or body of the State of Nevada is required for the
consummation of the transactions contemplated herein or in any
applicable Purchase Agreements, except such as have been obtained under
the Securities Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of
the Notes by the Agents and such other approvals (specified in such
opinion) as have been obtained;
(iv) neither the execution and delivery of the Indenture or the
issuance and sale of the Notes nor the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of the
terms hereof or thereof or of any applicable Purchase Agreements will
conflict with, result in a breach or violation of or constitute a
default under any law or the articles or certificate of incorporation
or by-laws of the Company or any of the Nevada Subsidiaries or any
bond, debenture, note or any other
<PAGE> 16
16
evidence of indebtedness of any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel and to
which the Company or any of the Nevada Subsidiaries is a party or bound
or any judgment, order or decree known to such counsel to be applicable
to the Company or any of the Nevada Subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the Nevada Subsidiaries;
and
(v) A Nevada court would give effect to the choice of New York law
in the Indenture.
As used therein, the phrase "known to counsel" shall mean only
such actual knowledge as such counsel has obtained from consultation with
attorneys presently in its firm from whom it has determined are likely, in
the ordinary course of their respective duties, to have knowledge of the
matters covered by such opinions. Except as expressly provided otherwise
therein, it has not conducted any other investigation or review in
connection with the opinions rendered therein, including without limitation
a review of any of its files or the files of the Company or the Nevada
Subsidiaries.
Such counsel may further assume information as to certain
contacts between the jurisdictions of New York and the transactions
contemplated by the Notes and the Indenture, including the following:
(a) substantial negotiations relating to such
transactions have taken place in the State of New York,
(b) the Company is executing and delivering the Notes
and the Indenture in New York in connection with the restructuring of
certain of its indebtedness and for certain other lawful and authorized
ends,
(c) the Company's financial advisor, as well as the
external counsel representing the Agents in connection with such
transactions, have their principal offices in the State of New York,
and negotiations in connection with such transactions have taken place
in certain of their offices, including such offices in New York, and
(d) many of the Agents are located in the State of New
York.
In rendering such opinion, such counsel may rely, (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Nevada or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the Agents,
(B) as to matters involving the laws of the State of Arizona, upon the
opinion delivered pursuant to Section 5(d), (C) as to matters involving the
laws of the State of New York, upon the opinion delivered pursuant to
Section 5(g) and, (D) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (e) include any
supplements thereto at the Closing Date.
(f) The Agents shall have received on the Closing Date an opinion,
addressed to the Agents, of Gary V. Klinefelter, Secretary and General
Counsel of the Company, dated the Closing Date, to the effect that:
<PAGE> 17
17
(i) each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business;
(ii) all the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances;
(iii) there is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit, which is not described or filed as required; and the
statements included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(iv) neither the execution and delivery of the Indenture or the
issuance and sale of the Notes nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of the
terms hereof or thereof or of any applicable Purchase Agreements, will
conflict with, result in a breach or violation of or constitute a
default under any law or the articles or certificate of incorporation
or by-laws of the Company or any of its subsidiaries or any bond,
debenture, note or any other evidence of indebtedness of any indenture,
mortgage, deed of trust or other material agreement or instrument and
to which the Company or any of its subsidiaries is a party or bound or
any judgment, order or decree to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or
any of its subsidiaries; and
(v) to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus (other
than the financial statements and other financial and statistical
information contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the Trust
Indenture Act and the Rules and Regulations; and such counsel has no
reason to believe that at the Effective Date the Registration Statement
(other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion) contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statements and other
financial and statistical information contained therein, as to which
<PAGE> 18
18
such counsel need express no opinion) at its date or at the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(g) The Agents shall have received from Milbank, Tweed, Hadley &
McCloy, counsel for the Agents, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Notes, the Indenture,
any applicable Purchase Agreements, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related matters
as the Agents may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) The Company shall have furnished to the Agents a certificate of the
Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplement to the
Prospectus, this Agreement and any applicable Purchase Agreements and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse change in the condition (financial or
other), results of operations, assets, business or prospects of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(i) On the Closing Date, the Company shall furnish a letter addressed
to the Agents, in form and substance satisfactory to the Agents, from Price
Waterhouse LLP, independent public accountants, containing the statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company contained or
incorporated by reference into the Registration Statement and the
Prospectus.
(j) Subsequent to dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been
(i) any change in the capital stock (other than the contemplated repurchase
of an aggregate of 6,052,928 shares of common stock from certain
shareholders as described in the Prospectus) or long-term debt of the
Company and its subsidiaries, taken as a whole, or (ii) any change in or
affecting the condition (financial or other), results of operations,
assets, business or prospects of the Company and its subsidiaries, taken as
a whole, which in any case referred to in clause (i) or (ii) above, in the
judgment of the Agents, materially impairs the investment quality of the
Notes.
<PAGE> 19
19
(k) Prior to such time, none of the following shall have occurred: (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the National Association of Securities Dealers Automated
Quotation National Market System or any other national exchange on which
such securities may be listed or trading in the Company's Series A 82%
Preferred Stock shall have been suspended by the Commission or the New York
Stock Exchange or any other national exchange on which such securities may
be listed, or trading in securities generally on the New York Stock
Exchange or the National Association of Securities Dealers Automated
Quotation National Market System shall have been suspended or limited or
minimum prices shall have been established on either such Exchange or
Market System, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities, (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crises or (iv) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, the effect of
which is to make it, in the judgment of the Agents, impractical or
inadvisable to proceed with the solicitation of offers to purchase the
Notes or the purchase of the Notes from the Company as principal pursuant
to the applicable Purchase Agreement, as the case may be.
(l) Prior to such time, there shall not have been any decrease in the
rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(m) Prior to the Closing Date, the Company shall have furnished to the
Agents such further information, certificates and documents as the Agents
may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Agents.
6. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes shall be
deemed to be (i) an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate given to the
Agents pursuant hereto are true and correct at the time of such acceptance
and (ii) an undertaking that such representations and warranties will be
true and correct at the time of delivery to the purchaser or his agent of
the Notes relating to such acceptance as though made at and as of each such
time (and such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended or supplemented at
each such time).
(b) Subsequent Delivery of Officers' Certificates. During each
Marketing Period, each time that (i) the Registration Statement or any
Prospectus shall be amended or supplemented (other than by (A) a Pricing
Supplement providing solely for the interest rates or maturities of the
Notes or the principal amount of Notes remaining to be sold or similar
changes, (B) an amendment or supplement which relates exclusively to an
offering of securities other than the Notes, or (C) except as set forth in
(ii) and (iii) below, an amendment or supplement by the filing of an
Incorporated Document), (ii) the Company files with the Commission an
Annual Report on
<PAGE> 20
20
Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K
which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form
S-3 under the Securities Act, (iii) the Agents reasonably request following
the filing by the Company with the Commission of an Incorporated Document
(other than as specified in the preceding clause (ii)), or (iv) the Company
sells Notes to an Agent as principal and the applicable Purchase Agreement
specifies the delivery of an officers' certificate under this Section 6(b)
as a condition to the purchase of Notes pursuant to such Purchase
Agreement, the Company shall, promptly following the delivery of any such
amendment or supplement or the filing of such Annual Report, Quarterly
Report or Current Report that is incorporated by reference into the
Prospectus, or promptly following such request by the Agents, or
concurrently with the Time of Delivery relating to such sale, furnish to
the Agents a certificate as of the date of such delivery, filing or Time of
Delivery relating to such sale or if such amendment, supplement or filing
was not filed during a Marketing Period, on the first date of the next
succeeding Marketing Period, representing that the statements contained in
the certificate referred to in Section 5(h) which was last furnished to the
Agents are true and correct at the time of such delivery or filing, as the
case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time), or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to
in Section 5(h), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing
Period, each time that (i) the Registration Statement or any Prospectus
shall be amended or supplemented (other than by (A) a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes, (B) an
amendment or supplement which relates exclusively to an offering of
securities other than the Notes, or (C) except as set forth in (ii) and
(iii) below, an amendment or supplement by the filing of an Incorporated
Document), (ii) the Company files with the Commission an Annual Report on
Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K
which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form
S-3 under the Securities Act, (iii) the Agents reasonably request following
the filing by the Company with the Commission of an Incorporated Document
(other than as specified in the preceding clause (ii)), or (iv) the Company
sells Notes to an Agent as principal and the applicable Purchase Agreement
specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Notes pursuant to such Purchase Agreement, the
Company shall, promptly following the delivery of any such amendment or
supplement or the filing of such Annual Report, Quarterly Report or Current
Report that is incorporated by reference into the Prospectus, or promptly
following such request by the Agents, or concurrently with the Time of
Delivery relating to such sale, or if such amendment, supplement or filing
was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, furnish the Agents and their counsel with the
written opinions of counsel to the Company specified in Sections 5(d), 5(e)
and 5(f), each addressed to the Agents and dated the date of delivery of
such opinion, in form satisfactory to the Agents, to the same effect as the
opinions referred to in Sections 5(d), 5(e) and 5(f), but modified, as
necessary, to relate to the Registration Statement and each Prospectus as
amended or supplemented to the time of delivery of such opinion; provided,
however, that in lieu of such opinion, counsel may furnish the Agents with
letters to the effect that the Agents may rely on prior opinions to the
same extent as though they were dated the date of such letters authorizing
reliance (except that statements in such prior
<PAGE> 21
21
opinions shall be deemed to relate to the Registration Statement and each
Prospectus as amended or supplemented to the time of delivery of such
letters authorizing reliance).
(d) Subsequent Delivery of Accountants' Letters. During each Marketing
Period, each time that (i) the Registration Statement or any Prospectus
shall be amended or supplemented to include additional financial
information (other than by (A) a Pricing Supplement providing solely for
the interest rates or maturities of the Notes or the principal amount of
Notes remaining to be sold or similar changes, (B) an amendment or
supplement which relates exclusively to an offering of securities other
than the Notes, or (C) except as set forth in (ii) and (iii) below, an
amendment or supplement by the filing of an Incorporated Document), (ii)
the Company files with the Commission an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q or a Current Report on Form 8-K which
contains financial information required to be set forth in or incorporated
by reference into the Prospectus pursuant to Item 11 or Form S-3 under the
Securities Act, (iii) the Agents reasonably request, following the filing
by the Company with the Commission of an Incorporated Document (other than
as specified in the preceding clause (ii)), or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement specifies
the delivery of letters under this Section 6(d) as a condition to the
purchase of Notes pursuant to such Purchase Agreement, the Company shall
cause Price Waterhouse LLP (or other independent accountants of the Company
acceptable to the Agents) to furnish the Agents, promptly following the
delivery of any such amendment or supplement or the filing of such Annual
Report, Quarterly Report, or Current Report that is incorporated by
reference into the Prospectus, or promptly following such request by the
Agents, or concurrently with the Time of Delivery relating to such sale, or
if such amendment, supplement or filing was not filed during a Marketing
Period, on the first date of the next succeeding Marketing Period, letters,
addressed as provided in Section 5(i) and dated the date of delivery of
such letters, in form and substance reasonably satisfactory to the Agents,
to the same effect as the letters referred to in Section 5(i) but modified
to relate to the Registration Statement and each Prospectus, as amended and
supplemented to the date of such letters, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company or other
relevant corporation.
(e) Opinion on Settlement Date. On any settlement date for the sale of
Notes, the Company shall, if requested by the Agent that solicited or
received the offer to purchase any Notes being delivered on such settlement
date and agreed by the Company prior to its agreement to sell such Notes,
furnish such Agent with written opinions of counsel to the Company, dated
such settlement date, in form satisfactory to such Agent, to the effect set
forth in sections 5(d), (e) and 5(f), but modified, as necessary, to relate
to the Prospectus relating to the Notes to be delivered on such settlement
date; provided, however, that in lieu of such opinion, such counsel may
furnish the Agents with a letter to the effect that the Agents may rely on
such prior opinion to the same extent as though it was dated such
settlement date (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and such Prospectus as
amended or supplemented to the time of delivery of such letter authorizing
reliance).
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Agent, the
directors, officers, employees and agents of each Agent and each person, if
any, who controls any Agent within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Notes), to
which that Agent, director, officer,
<PAGE> 22
22
employee, agent or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) 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 or (iii) any act or failure to
act or any alleged act or failure to act by any Agent in connection with,
or relating in any manner to, the Notes or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable
under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Agent through its
gross negligence or willful misconduct), and shall reimburse each Agent,
the directors, officers, employees and agents of each Agent and each such
controlling person for any legal or other expenses reasonably incurred by
that Agent or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Agent specifically for inclusion therein
(which information shall be determined as set forth in Section 7(b)); and
provided, further, that as to any Preliminary Prospectus or supplement
thereto this indemnity agreement shall not inure to the benefit of any
Agent, the directors, officers, employees and agents of each Agent or any
person controlling that Agent on account of any loss, claim, damage,
liability or action arising from the sale of Notes to any person by that
Agent if that Agent failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus or supplement thereto was
corrected in that Prospectus, unless such failure resulted from
non-compliance by the Company with Section 3(c). For purposes of the second
proviso to the immediately preceding sentence, the term Prospectus shall
not be deemed to include the documents incorporated by reference therein,
and no Agent shall be obligated to send or give any supplement or amendment
to any document incorporated by reference in a Preliminary Prospectus or
supplement thereto or the Prospectus to any person other than a person to
whom such Agent has delivered such incorporated documents in response to a
written request therefor. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Agent or to
any controlling person of that Agent.
(b) Each Agent, severally and not jointly, shall indemnify and hold
harmless the Company, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement or a material fact
contained in any Preliminary Prospectus,
<PAGE> 23
23
the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of that Agent
specifically for inclusion therein, and shall reimburse the Company and any
such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Supplemental Plan of Distribution" in any preliminary Prospectus
Supplement or the final Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the several Agents for
inclusion in the documents referred to in the foregoing indemnity, and the
Agents confirm that such statements are correct. The foregoing indemnity
agreement is in addition to any liability which any Agent may otherwise
have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 7 the indemnified party shall notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Agents shall
have the right to employ counsel to represent jointly the Agents and their
respective controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the Agents
against the Company under this Section 7, if, in the reasonable judgment of
the Agents, there are legal defenses available to them which are different
from or in addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one such
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (other than local counsel which shall be
engaged only for purposes of appearing with such counsel in such
jurisdictions in which such firm of attorneys is not licensed to
practice)), and in that event the fees and expenses of such separate
counsel shall be paid by the Company. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and an indemnifying party
shall not be liable for any settlement of any claim or action effected
without its written consent.
<PAGE> 24
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(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein (other
than by reason of the failure to give notice, as provided in the first
section of Section 7(c)), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as shall
be appropriate to reflect the relative benefits received by the Company on
the one hand and the Agents on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Agents on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and any Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Notes (before deducting expenses) received by
the Company bear to the total commissions received by such Agent with
respect to such offering. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or any Agent, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Agents
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by pro rata allocation (even if the
Agents were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to in this Section 7(d). The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Notes sold through such Agent and distributed to the public was offered to
the public exceeds the amount of any damages which such Agent has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. Each Agent's obligation to contribute
as provided in this Section 7(d) are several and not joint.
8. Status Of Each Agent. In soliciting offers to purchase the Notes
from the Company pursuant to this Agreement (other than in respect of any
Purchase Agreement), each Agent is acting individually and not jointly and is
acting solely as agent for the Company and not as principal. Each Agent will
make reasonable best efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes from the Company has been solicited
by such Agent and accepted by the Company, but such Agent shall have no
liability to the Company in the event any such purchase is not consummated for
any reason. If the Company shall default in its obligations to deliver Notes to
a purchaser whose offer the Company has accepted, the Company shall (i) hold the
Agents harmless against any loss, claim or damage arising from or as a result of
such default by the Company and, (ii) in particular, pay to the Agents any
commission to which they would otherwise be entitled in connection with such
sale.
<PAGE> 25
25
9. Termination. This Agreement may be terminated for any reason at any
time by any party upon the giving of one day's written notice of such
termination to the other parties hereto; provided, however, if such terminating
party is an Agent, such termination shall be effective only with respect to such
terminating party. In addition, the Company may terminate this Agreement in
accordance with the preceding sentence with respect to any one or more of the
Agents without terminating this Agreement with respect to all of the Agents. If,
at the time of a termination, an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser has not
occurred, the provisions of this Agreement shall remain in effect until such
Notes are delivered. The agreements contained in Sections 2(c), 3(f), 3(g), 4, 7
and 8 and the representations and warranties of the Company in Section 1 shall
survive the delivery of the Notes and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
10. Sales of Notes Denominated in a Foreign Currency and Indexed Notes.
If at any time the Company and any of the Agents shall determine to issue and
sell Notes denominated in a currency or currency unit other than U.S. Dollars,
which other currency may include a composite currency, or with respect to which
an index is used to determine the amounts of payments of principal and any
premium or interest, the Company and any such Agent shall execute and deliver an
amendment hereto (a "Foreign Currency Amendment" or "Indexed Note Amendment", as
the case may be) in the form attached hereto as Exhibit D. Such amendment shall
establish, as appropriate, additions and modifications that shall apply to the
sales, whether offered on an agency or principal basis, of the Notes covered
thereby. The Agents are authorized to solicit offers to purchase Notes with
respect to which an index is used to determine the amounts of principal and any
premium and interest, and the Company shall agree to any sales of such Notes
(whether offered on an agency or principal basis) only in a minimum aggregate
amount of $2,500,000 or its equivalent.
11. Notices. Except as otherwise provided herein, all notices and other
communications provided pursuant to the terms of the Agreement shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication, which shall be confirmed. Notices to the
Agents shall be directed to them as follows:
Lehman Brothers, Inc.
American Express Tower
3 World Financial Center
9th Floor
New York, New York 10285
Attention: Medium Term Note Department
Telephone: (212) 526-2040
Telecopier: (212) 528-1718
Chase Securities Inc.
270 Park Avenue
6th Floor
New York, New York 10017
Attention: Medium Term Note Desk
Telephone: (212) 834-4421
Telecopier: (212) 834-6170
<PAGE> 26
Citicorp Securities, Inc.
399 Park Avenue
7th Floor
New York, New York 10043
Attention: Chris Daifotis
Capital Markets Group
Telephone: (212) 291-3481
Telecopier: (212) 291-3910
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk, Carlos Cabrera
Telephone: (212) 761-2000
Telecopier: (212) 761-8846
NationsBanc Capital Markets, Inc.
NC1-007-0701
MTN Product Development
100 N. Tryon Street
Charlotte, North Carolina 28255
Attention: Lynn McConnell
Telephone: (704) 386-6616
Telecopier: (704) 388-9939
Salomon Brothers Inc
Seven World Trade Center
32nd Floor
New York, New York 10048
Attention: Medium Term Note Department
Telephone: (212) 783-5897
Telecopier: (212) 783-2274
Notices to the Company shall be directed to it as follows:
AMERCO
1325 Airmotive Way
Suite 100
Reno, Nevada 89502-3239
Telephone: (702) 688-6300
Telecopier: (702) 688-6338
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Agents and the Company and their
respective successors and assigns. This Agreement is for the sole benefit of
only those persons, except that (A) the representations, warranties, indemnities
and agreements of the Company contained in this Agreement also shall be deemed
to be for the benefit of the directors, officers, employees and agents of any
Agent and the person or persons, if any, who control any Agent within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of
the Agents contained in Section 7(b) shall be deemed to be for the benefit of
directors of
<PAGE> 27
27
the Company, officers of the Company who have signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained in this Agreement. No purchaser of Notes shall be deemed to
be a successor to an Agent solely by reason of such purchase.
13. Certain Definitions. The word "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations under the Securities Act.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York (without giving effect to the principles of
choice of law).
15. Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
16. Headings. The headings used in this Agreement are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
<PAGE> 28
28
If the foregoing correctly sets forth our agreement, please indicate
your acceptance of this Agreement in the space provided for that purpose below.
Very truly yours,
AMERCO
By:___________________________
Name: Gary V. Klinefelter
Title: Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS, INC.
By:___________________________
Name:
Title:
CHASE SECURITIES INC.
By:___________________________
Name:
Title:
CITICORP SECURITIES, INC.
By:___________________________
Name:
Title:
MORGAN STANLEY & CO. INC.
By:___________________________
Name:
Title:
<PAGE> 29
29
NATIONSBANC CAPITAL MARKETS, INC.
By:___________________________
Name:
Title:
SALOMON BROTHERS INC
By:___________________________
Name:
Title:
<PAGE> 30
Schedule I
List of Significant Subsidiaries
pursuant to Section 1(d)
U-Haul International, Inc - a Nevada Corporation
Amerco Real Estate Company - a Nevada Corporation
Oxford Life Insurance Company - an Arizona Corporation
Republic Western Insurance Company - an Arizona Corporation
<PAGE> 31
Schedule II
List of Agreements to Register
Securities pursuant to Section 1(p)
1. Share Repurchase and Registration Rights Agreement, dated as of March
1, 1992, among AMERCO, Paul F. Shoen and PAFRAN, INC.
2. Share Repurchase and Registration Rights Agreement, dated as of May 1,
1992, among AMERCO, Sophia M. Shoen and SOPHMAR, INC.
3. Preferred Stock Purchase Agreement, dated August 30, 1996, between
AMERCO and Blue Ridge Investments, L.L.C.
4. Registration Rights Agreement, dated as of August 30, 1996, between
AMERCO and NationsBank Corporation.
<PAGE> 32
Exhibit A
AMERCO
MEDIUM-TERM NOTES
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
<TABLE>
<CAPTION>
<S> <C>
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150%
18 months to less than 2 years 0.200%
2 years to less than 3 years 0.250%
3 years to less than 4 years 0.350%
4 years to less than 5 years 0.450%
5 years to less than 6 years 0.500%
6 years to less than 7 years 0.550%
7 years to less than 10 years 0.600%
10 years to less than 15 years 0.625%
15 years to less than 20 years 0.650%
20 years to 30 years 0.750%
</TABLE>
A-1
<PAGE> 33
Exhibit B
AMERCO
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, due from nine months to 30 years from date of issue
(the "Notes") may be offered on a continuing basis by AMERCO (the "Company").
Lehman Brothers Inc., Chase Securities Inc., Citicorp Securities, Inc., Morgan
Stanley & Co. Incorporated, NationsBanc Capital Markets, Inc. and Salomon
Brothers Inc, as agents (each an "Agent" and collectively, the "Agents"), have
each agreed to use their reasonable best efforts to solicit offers to purchase
the Notes. The Notes are being sold pursuant to a Distribution Agreement between
the Company and the Agents dated September 10, 1996 (as it may be supplemented
or amended from time to time, the "Distribution Agreement") to which these
administrative procedures are attached as an exhibit. The Notes will be issued
pursuant to an Indenture, dated as of September 10, 1996 (as it may be amended
or supplemented from time to time, the "Indenture"), between the Company and The
First National Bank of Chicago, as trustee (the "Trustee"). The Notes will rank
equally with all other unsecured and unsubordinated indebtedness of the Company
and will have been registered with the Securities and Exchange Commission (the
"Commission"). Unless otherwise noted, terms not defined herein shall have the
same meanings as in the Prospectus Supplement relating to the Notes (the
"Prospectus") and in the Distribution Agreement. Special administrative
procedures for Multi-Currency Notes and for Global Securities for Book-Entry
Notes follow these administrative procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Company will be performed by its Treasury
Department. Administrative procedures for the offering are explained below.
REGISTRATION. Notes will be issued only in fully registered form as
either a Book-Entry Note or a Certificated Note. Certificated Notes may be
presented for registration of transfer or exchange at the New York office of the
Trustee's designated agent.
DENOMINATIONS. Unless otherwise indicated in the applicable Pricing
Supplement, Notes will be issued and payable in U.S. dollars in denominations of
$1,000 and any integral multiple thereof.
INTEREST PAYMENTS. Interest on Fixed Rate Notes and Floating Rate Notes
(each as defined in the Prospectus Supplement) shall accrue and be payable on
terms specified in the Prospectus Supplement and the applicable Pricing
Supplement.
ACCEPTANCE AND REJECTION OF OFFERS. The Company shall have the sole
right to accept offers to purchase Notes and may reject any such offer in whole
or in part. Each Agent shall promptly communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes from the Company received by it
other than those rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised without advising the Company, to reject any
offers in whole or in part.
SETTLEMENT. The receipt of immediately available funds in U.S. Dollars
by the Company in The City of New York in payment for a Note (less the
applicable commission) and the authentication
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<PAGE> 34
and issuance of such Note shall, with respect to such Note, constitute
"Settlement." All offers accepted by the Company will be settled from one to
three Business Days from the date of acceptance by the Company pursuant to the
timetable for Settlement set forth below unless the Company and the purchaser
agree to Settlement on a later date; provided, however, that the Company will so
notify the Trustee of any such later date on or before the Business Day
immediately prior to the Settlement date.
SETTLEMENT PROCEDURES FOR CERTIFICATED NOTES. In the event of a
purchase of Notes by an Agent, as principal, appropriate Settlement details will
be set forth in the applicable Purchase Agreement to be entered into between
such Agent and the Company pursuant to the Distribution Agreement. In the Event
of the sale of a Multi-Currency Note or an Indexed Note, additional or different
Settlement details may be set forth in the applicable Amendment to be entered
into between the Agent and the Company pursuant to the Distribution Agreement.
Settlement procedures with regard to each Certificated Note sold
through each Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following Settlement information:
1. Exact name in which the Note is to be registered (the "Registered
Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner (if available).
4. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to elect payments in a
Specified Currency applies and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
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<PAGE> 35
iv) Interest Reset Dates, Interest Reset Period and Interest
Determination Dates
v) Index Maturity
vi) maximum and minimum interest rates, if any
vii) overdue rate, if any
(c) Indexed Notes:
The applicable terms thereof.
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent Interest Periods,
if any.
13. Extension Periods, if any, and Final Maturity Dates, if any.
14. The date on or after which the Notes are redeemable at the option of
the Company or repurchasable by the Company at the option of the
holder, and additional redemption or repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
18. Whether such Certificated Note is issued at an original issue discount
("OID"), and, if so, the total amount of OID, the yield to maturity and
the initial accrual period of OID.
19. Other provisions, if appropriate.
B. The Company will confirm the above Settlement information to the
Trustee by telex or facsimile. If the Company rejects an offer, the Company will
promptly notify such Agent by telephone.
C. The Trustee will assign a Note number to the transaction and will
complete the first page of the preprinted 4-ply Note packet, the form of which
was previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such Agent will
acknowledge receipt of the Note by completing the yellow stub and returning it
to the Trustee.
E. Such Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S. dollars in the
amount of the principal amount of the Note, less the applicable commission or
discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available funds in
the amount of the principal amount of the
B-3
<PAGE> 36
Note. Such Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written offer of Notes,
delivery of the Note and the confirmation and payment by the purchaser for
the Note.
G. Such Agent will obtain the acknowledgement of receipt for the Note
and Prospectus by the purchaser through the purchaser's completion of the blue
stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
SETTLEMENT PROCEDURES TIMETABLE FOR CERTIFICATED NOTES. For offers
accepted by the Company, Settlement procedures "A" through "H" set forth above
shall be completed on or before the respective times set forth below:
Settlement
Procedure Time (New York)
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to Settlement date
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the Settlement date
Failure
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company for
Settlement, such Agent will immediately notify the Trustee and the Company's
Treasurer by telephone, confirmed in writing, of such failure and return the
Note to the Trustee. Upon the Trustee's receipt of the Note from the Agent, the
Company will promptly return to the Agent an amount of immediately available
funds in U.S. dollars equal to any amount previously transferred to the Company
in respect of the Note pursuant to advances made by the Agent. Such returns will
be made on the Settlement date, if possible, and in any event not later than 12
noon (New York City time) on the Business Day following the Settlement date.
Upon receipt of the Note in respect of which the default occurred, the Trustee
will mark the Note "canceled", make appropriate entries in its records and
deliver the Note to the Company with an appropriate debit advice. Such Agent
will not be entitled to any commission with respect to any Note which the
purchaser does not accept or make payment for.
REDEMPTION. The Notes will be redeemable (if at all) prior to their
Stated Maturity on terms specified in the Prospectus Supplement and the
applicable Pricing Supplement.
MATURITY. Notes will be paid at Maturity on terms specified in the
Prospectus Supplement and the applicable Pricing Supplement.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES. The Company and the
Agents will discuss from time to time the rates to be borne by the Notes that
may be sold as a result of the solicitation of offers by the Agents. Once any
Agent has recorded any indication of interest in Notes upon certain
B-4
<PAGE> 37
terms and communicated with the Company, if the Company accepts an offer to
purchase Notes upon such terms, the Company will prepare a Pricing Supplement,
in the form previously approved by the Agents, reflecting the terms of such
Notes and, after approval from such Agent, will arrange to electronically
transmit for filing with the SEC under the EDGAR system a copy of such Pricing
Supplement (together with the Prospectus, if amended or supplemented) and will
supply an appropriate number of copies of the Prospectus, as then amended or
supplemented, together with such Pricing Supplement, to the Agent who presented
such offer. See "Delivery of Prospectus".
If the Company decides to post rates and a decision has been reached to
change interest rates, the Company will promptly notify each Agent. Each Agent
will forthwith suspend solicitation of purchases. At that time, the Agents will
recommend and the Company will establish rates to be so "posted". Following
establishment of posted rates and prior to the filing described in the following
sentence, the Agents may only record indications of interest in purchasing Notes
at the posted rates. Once any Agent has recorded any indication of interest in
Notes at the posted rates and communicated with the Company, if the Company
plans to accept an offer at the posted rate, the Company will prepare a Pricing
Supplement reflecting such posted rates and, after approval from the Agents,
will arrange to electronically transmit for filing with the SEC under the EDGAR
system a copy of such Pricing Supplement (together with the Prospectus if
amended or supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Agent who presented such
offer. See "Delivery of Prospectus".
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT. In the event that
at the time the Agents, at the direction of the Company, suspend solicitation of
offers to purchase from the Company there shall be any orders outstanding which
have not been settled, the Company will promptly advise the Agents and the
Trustee whether such orders may be settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as in effect at the time of the
suspension may be delivered in connection with the settlement of such orders.
The Company will have the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company determines that
such orders may not be settled or that copies of such Prospectus may not be so
delivered.
DELIVERY OF PROSPECTUS. A copy of the Prospectus as most recently
amended or supplemented on the date of delivery thereof, together with the
applicable Pricing Supplement, must be delivered to a purchaser prior to or
simultaneously with the earlier of the delivery of (i) the written confirmation
of a sale sent to a purchaser or his agent and (ii) any Note purchased by such
purchaser. The Company shall ensure that the applicable Agent receives copies of
the Prospectus and each amendment or supplement thereto (including the
applicable Pricing Supplement) in such quantities and within such time limits as
will enable such Agent to deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance with the preceding sentence.
Copies of Pricing Supplements should be delivered to:
If to Lehman Brothers Inc.:
By facsimile delivery to:
Lehman Brothers Inc.
c/o ADP Prospectus Services
536 Broad Hollow Road
Melville, New York 11747
Attention: Mike Ward
Telephone: (516) 254-7106
Facsimile: (516) 249-7492
B-5
<PAGE> 38
with a copy by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: (212) 526-8400
If to Chase Securities Inc.:
270 Park Ave
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Facsimile: (212) 834-6170
If to Citicorp Securities, Inc.:
399 Park Avenue
7th Floor
New York, New York 10043
Attention: Chris Daifotis
Capital Markets Group
Telephone: (212) 291-3481
Facsimile: (212) 291-3910
If to Morgan Stanley & Co. Incorporated:
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk, Carlos Cabrera
Telephone: (212) 761-2000
Facsimile: (212) 761-8846
If to NationsBanc Capital Markets, Inc.:
NC1-007-07-01
100 N. Tryon Street
Charlotte, North Carolina 28255
Attention: Lynn McConnell,
MTN Product Development
Telephone: (704) 386-6616
Facsimile: (704) 388-9939
B-6
<PAGE> 39
If to Salomon Brothers Inc:
Seven World Trade Center
32nd Floor
New York, New York 10048
Attention: Medium Term Note Department
Telephone: (212) 783-5897
Telecopier: (212) 212) 783-2274
If, since the date of acceptance of a purchaser's offer, the Prospectus
shall have been supplemented solely to reflect any sale of Notes on terms
different from those agreed to between the Company and such purchaser or a
change in posted rates not applicable to such purchaser, such purchaser shall
not receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Trustee will make
all such deliveries with respect to all Notes sold directly by the Company.
AUTHENTICITY OF SIGNATURES. The Company will cause the Trustee to
furnish the Agents from time to time with the specimen signatures of each of the
Trustee's officers, employees and agents who have been authorized by the Trustee
to authenticate Notes, but the Agents will have no obligation or liability to
the Company or the Trustee in respect of the authenticity of the signature of
any officer, employee or agent of the Company or the Trustee on any Note.
ADVERTISING COSTS. The Company will determine with the Agents the
amount and nature of advertising that may be appropriate in offering the Notes.
Advertising expenses incurred with the consent of the Company will be paid by
the Company.
B-7
<PAGE> 40
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency Amendment, the
following procedures and terms shall apply to Multi-Currency Notes in addition
to, and to the extent inconsistent therewith in replacement of, the procedures
and terms set forth above.
DENOMINATIONS. The authorized denominations of any Multi-Currency Note
will be the amount of the Specified Currency for such Multi-Currency Note
equivalent, at the noon buying rate in the City of New York for cable transfers
for such Specified Currency (the "Market Exchange Rate") on the first Business
Day in the City of New York and the country issuing such currency (or in the
case of ECUs, Brussels) next preceding the date on which the Company accepts the
offer to purchase such Multi-Currency Note, to U.S.$1,000 (rounded down to an
integral multiple of 1,000 units of such Specified Currency) and any greater
amount that is an integral multiple of 1,000 units of such Specified Currency.
CURRENCIES. Unless otherwise indicated in the applicable Pricing
Supplement, purchasers are to pay for Multi-Currency Notes in the Specified
Currency in immediately available funds. At the present time there are limited
facilities in the United States for converting U.S. dollars into the Specified
Currencies and vice versa, and banks do not offer non-U.S. dollar checking or
savings account facilities in the United States. However, if requested by a
prospective purchaser of a Multi-Currency Note on or prior to the fifth Business
Day preceding the date of delivery of the Multi-Currency Note, or by such other
day as determined by the Agent who presented such offer to purchase the
Multi-Currency Note to the Company, such Agent is prepared to arrange for the
conversion of U.S. dollars into the applicable Specified Currency to enable such
purchaser to pay for the Multi-Currency Notes. Each such conversion will be made
by the Agent on such terms and subject to such conditions, limitations and
charges as the agent may from time to time establish in accordance with its
regular foreign exchange practices. All costs of exchange will be borne by the
purchasers of the Multi-Currency Notes.
Specific information about the foreign currency or currency unit in
which a particular Multi-Currency Note is denominated, including historical
exchange rates and a description of the currency and any exchange controls, will
be set forth in the applicable Pricing Supplement.
PAYMENT OF PRINCIPAL AND INTEREST. Unless otherwise specified in the
applicable Pricing Supplement, payments of interest and principal (and premium,
if any) with respect to any Multi-Currency Note will be made by wire transfer to
such account with a bank located in the country issuing the Specified Currency
(or, with respect to Multi-Currency Notes denominated in ECUs, Brussels) or
other jurisdiction acceptable to the Company and the Trustee as shall have been
designated at least 15 days prior to the Interest Payment Date or Maturity, as
the case may be, by the Holder of such Multi-Currency Note on the relevant
Regular Record Date or at Maturity, provided that, in the case of payment of
principal of (and premium, if any) and any interest due at Maturity, the
Multi-Currency Note is presented to the Paying Agent in time for the Payment
Agent to make such payments in such funds in accordance with its normal
procedures. Such designation shall be made by filing the appropriate information
with the Trustee at its Corporate Trust Office, and, unless revoked, any such
designation made with respect to any Multi-Currency Note by a Holder will remain
in effect with respect to any further payments with respect to such
Multi-Currency Note payable to such Holder. If a payment with respect to any
such Multi-Currency Note cannot be made by wire transfer because the required
designation has not been received by the Trustee on or before the requisite date
or for any other reason, a notice will be mailed to the Holder at its registered
address requesting a designation pursuant to which such wire transfer can be
made and, upon the Trustee's receipt of such a designation, such payment will be
made within 15 days of
B-8
<PAGE> 41
such receipt. The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments will be borne by the Holders of the
Multi-Currency Notes in respect of which such payments are made.
If so specified in the applicable Pricing Supplement, except as
provided below, payments of interest and principal (and premium, if any) with
respect to any Multi-Currency Note will be made in U.S. dollars if the Holder of
such Multi-Currency Note on the relevant Regular Record Date or at Maturity, as
the case may be, has transmitted a written request for such payment in U.S.
dollars to the Paying Agent at its principal office on or prior to such Regular
Record Date or the date 15 days prior to Maturity, as the case may be. Such
request may be delivered by mail, by hand or by cable, telex or any other form
of facsimile transmission.
Any such request made with respect to any Multi-Currency Note by a
Holder will remain in effect with respect to any further payments of interest
and principal (and premium, if any) with respect to such Multi-Currency Note
payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on any such Multi-Currency Note if an
Event of Default has occurred with respect thereto or upon the giving of a
notice of redemption). Holders of Multi-Currency Notes whose Multi-Currency
Notes are registered in the name of a broker or nominee should contact such
broker or nominee to determine whether and how an election to receive payments
in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Multi-Currency
Note who elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multi-contributor pages of the Quoting Source for three (or
two if three are not available) major banks in The City of New York. The first
three (or two) such banks selected by the Currency Determination Agent which are
offering quotes on the quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business Day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate for such date is not
then available, such payment will be made in the Specified Currency. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All currency
exchange costs associated with any payment in U.S. dollars on any such
Multi-Currency Note will be borne by the Holder thereof by deductions from such
payment. The currency determination agent (the "Currency Determination Agent")
with respect to any Multi-Currency Notes will be specified in the applicable
Pricing Supplement for such Multi-Currency Notes. If payment in respect of a
Multi-Currency Note is required to be made in any currency unit (e.g. ECUs) and
such currency unit is unavailable, in the good faith judgment of the Company,
due to the imposition of exchange controls or other circumstances beyond the
Company's control, then all payments in respect of such Multi-Currency Note
shall be made in U.S. dollars until such currency unit is again available. The
amount of each payment of U.S. dollars shall be computed on the basis of the
equivalent of the currency unit in U.S. dollars, which shall be determined by
the Currency Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component Currencies")
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<PAGE> 42
shall be the currency amounts that were components of the currency unit as of
the Conversion Date. The equivalent of the currency unit in U.S. dollars shall
be calculated by aggregating the U.S. dollar equivalents of the Component
Currencies. The U.S. dollar equivalent of each of the Component Currencies shall
be determined by the Currency Determination Agent on the basis of the Market
Exchange Rate for each such Component Currency as of the Conversion Date.
"Market Exchange Rate" means the noon buying rate in The City of New York for
cable transfers of such Specified Currency as certified for customs purposes by
the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on Holders of Multi-Currency
Notes.
OUTSTANDING MULTI-CURRENCY NOTES. For purposes of calculating the
principal amount of any Multi-Currency Note for any purpose under the Indenture,
the principal amount of such Multi-Currency Note at any time outstanding shall
be deemed to be the U.S. dollar equivalent at the Market Exchange Rate,
determined as of the date of the original issuance of such Multi-Currency Note,
of the principal amount of such Multi-Currency Note.
DETAILS FOR SETTLEMENT OF MULTI-CURRENCY NOTES. In addition to the
Settlement information specified in "Settlement Procedures" above, the Agents
shall communicate to the Company in the manner set forth in "Settlement
Procedures" the following information:
1. Specified Currency.
2. Denominations.
3. Wire transfer and overseas bank account information (if holder has
elected payment in a Specified Currency).
ADDITIONAL OBLIGATIONS OF THE COMPANY AND THE AGENTS.
(a) The Company or its designated agent shall submit such reports or
information as may be required from time to time by applicable law, regulations
and guidelines promulgated by Japanese governmental and regulatory authorities
in respect of the issue and purchase of Notes denominated in Japanese Yen.
(b) The Company acknowledges that the terms of Notes denominated in
Japanese Yen that will be issued will be limited to those which have been
recognized by Japanese authorities.
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<PAGE> 43
(c) Each Agent represents to and agrees with the Company that it will
not offer or sell any Note directly or indirectly in Japan or to residents of
Japan or for the benefit of any Japanese person (which term as used herein means
any person resident in Japan, including any corporation or other entity
organized under the laws of Japan) or to others for reoffering or resale
directly or indirectly in Japan or to any Japanese person during the period of
90 days from the issue date of such Note (which Note is denominated in Japanese
Yen) or 180 days from the issue date of the Note (which Note is a Dual Currency
Note, Reverse Dual Currency Note or Optional Dual Currency Note) and that
thereafter it will not do so, except under circumstances which will result in
compliance with any applicable laws, regulations and ministerial guidelines of
Japan taken as a whole. Furthermore, in connection with the issuance of Notes
denominated in Japanese Yen, the Company and you each agree to comply with all
applicable laws, regulations and guidelines as amended from time to time of the
Japanese governmental and regulatory authorities.
B-11
<PAGE> 44
SPECIAL ADMINISTRATIVE PROCEDURES
FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). An owner of a Book-Entry Note will not
be entitled to receive a certificate representing such Note. In connection with
the qualification of the Book-Entry Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from the Company and
the Trustee to DTC and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of May 26, 1989, and its obligations as a participant
in DTC, including DTC's Same-Day Funds Settlement System ("SDFS"). Except as
otherwise set forth in this Exhibit B, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth below.
ISSUANCE. On any date of settlement (as defined under "Settlement"
below) for one or more Fixed Rate Book-Entry Notes, the Company will issue a
single Global Security in fully registered form without coupons (a "Global
Security") representing all of such Notes that have the same Original Issue
Date, interest rate and Stated Maturity. Similarly, on any settlement date for
one or more Floating Rate Book-Entry Notes, the Company will issue a single
Global Security representing all of such Notes that have the same Original Issue
Date, Interest Rate Basis, Initial Interest Rate, Interest Payment Period,
Interest Payment Dates, Index Maturity, Spread or Spread Multiplier, if any,
minimum interest rate (if any), maximum interest rate (if any), redemption
provisions, if any, and Stated Maturity. No Global Security will represent (i)
both Fixed Rate and Floating Rate Book-Entry Notes or (ii) any Certificated Note
or (iii) any Multi-Currency or Indexed Note.
IDENTIFICATION NUMBERS. The Company will arrange, on or prior to
commencement of a program for the offering of Book-Entry Notes, with the CUSIP
Service Bureau of Standard & Poor's Ratings Group (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and relating to Global Securities
representing the Book-Entry Notes. The Trustee has or will obtain from the CUSIP
Service Bureau a written list of such series of reserved CUSIP numbers and will
deliver to the Company and DTC such written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to Global Securities as described
below under Settlement Procedure "B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Trustee has assigned to Global
Securities. The Trustee will notify the Company at any time when fewer than 100
of the reserved CUSIP numbers remain unassigned to Global Securities, and if it
deems necessary, the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers the Trustee shall deliver such additional CUSIP
numbers to the Company and DTC.
REGISTRATION. Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register maintained under the
Indenture. The beneficial owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with respect to
such Note in the account of such Participants. The ownership interest of such
beneficial owner
B-12
<PAGE> 45
in such Note will be recorded through the records of such Participants or
through the separate records of such Participants and one or more indirect
participants in DTC.
TRANSFERS. Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf of beneficial transferors
and transferees of such Note.
CONSOLIDATION AND EXCHANGE. The Trustee may deliver to DTC and the
CUSIP Service Bureau at any time a written notice of consolidation specifying
(i) the CUSIP numbers of two or more Outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes having the same Original Issue Date,
interest rate and Stated Maturity and with respect to which interest has been
paid to the same date or (B) Floating Rate Book-Entry Notes having the same
Interest Rate Basis, Original Issue Date, Initial Interest Rate, Interest
Payment Dates, Index Maturity, Spread or Spread Multiplier, if any, minimum
interest rate (if any), maximum interest rate (if any), redemption provisions,
if any, and Stated Maturity and with respect to which interest has been paid to
the same date, (ii) a date, occurring at least thirty days after such written
notice is delivered and at least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a CUSIP number,
obtained from the Company, to be assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send to its participants (including the
Trustee) a written reorganization notice to the effect that such exchange will
occur on such date. Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written notice setting forth such exchange
date and the new CUSIP number and stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be exchanged will no longer be valid.
On the specified exchange date, the Trustee will exchange such Global Securities
for a single Global Security bearing the new CUSIP number, and the CUSIP numbers
of the exchanged Global Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged exceed the maximum principal
amount specified by DTC, one Global Security will be authenticated and issued to
represent such maximum principal amount of the exchanged Global Securities and
an additional Global Security will be authenticated and issued to represent any
remaining principal amount of such Global Securities. See "Denominations".
DENOMINATIONS. Unless otherwise specified in the Prospectus Supplement
or the applicable Pricing Supplement, Book-Entry Notes will be issued in
principal amounts of $1,000 or any integral multiple thereof.
INTEREST. Interest on each Book-Entry Note will accrue and be payable
on terms specified in the Prospectus Supplement and the applicable Pricing
Supplement. Standard & Poor's Ratings Group will use the information received in
the pending deposit message described under Settlement Procedure "C", below in
order to include the amount of any interest payable and certain other
information regarding the related Global Security in the appropriate weekly bond
report published by Standard & Poor's Ratings Group. Promptly after each
Interest Determination Date for Floating Rate Notes, the Company will notify the
Trustee, and the Trustee in turn will notify Standard & Poor's Ratings Group, of
the interest rates determined on such Interest Determination Date.
PAYMENTS OF PRINCIPAL AND INTEREST.
Payments of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest Payment
B-13
<PAGE> 46
Date coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's Ratings
Group. The Company will pay to the Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date (other than at Maturity), and the
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of each month,
the Trustee will deliver to the Company and DTC a written list of principal and
interest to be paid on each Global Security maturing in the following month. The
Company, the Trustee and DTC will confirm the amounts of such principal and
interest payments with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global Security. The Company
will pay to the Trustee, as the paying agent, the principal amount of such
Global Security, together with interest due at such Maturity. The Trustee will
pay such amount to DTC at the times and in the manner set forth below under
"Manner of Payment".
Manner of Payment. The total amount of any principal and interest due
on Global Securities on any Interest Payment Date or at Maturity shall be paid
by the Company to the Trustee in funds available for use by the Trustee as of
9:30 A.M. (New York City time) on such date. The Company will make such payment
on such Global Securities by instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. For maturity, redemption or any other
principal payments: prior to 10 A.M. (New York City time) on such date or as
soon as possible thereafter, the Trustee will make such payments to DTC in same
day funds in accordance with DTC's Same Day Funds Settlement Paying Agent
Operating Procedures. For interest payments: the Trustee will make such payments
to DTC in accordance with existing arrangements between DTC and the Trustee. DTC
will allocate such payments to its participants in accordance with its existing
operating procedures. Neither the Company (either as issuer or as Paying Agent)
nor the Trustee shall have any direct responsibility or liability for the
payment by DTC to such Participants of the principal of and interest on the
Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable
law to be withheld from any interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and materials directly to the
beneficial owner of such Note.
SETTLEMENT PROCEDURES. Settlement Procedures with regard to each
Book-Entry Note which will be registered in the name of the nominee of DTC
(unless otherwise indicated in the applicable Pricing Supplement, "Cede & Co.")
sold by the Company through an Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following settlement information:
1. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
B-14
<PAGE> 47
5. Trade Date.
6. Specified Currency and whether the option to elect payments in a
Specified Currency applies and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest Reset Period and
Interest Determination Dates
v) Index Maturity
vi) maximum and minimum interest rates, if any
vii) overdue rate, if any
(c) Currency Indexed Notes:
The applicable terms thereof
8. Interest Payment Date(s) and Regular Record Dates.
9. Optional Interest Reset Dates, if any, and Subsequent Interest Periods,
if any.
10. Extension Periods, if any, and Final Maturity Dates, if any.
11. The date on or after which the Notes are redeemable at the option of
the Company or repurchasable by the Company at the option of the
holder, and additional redemption or repurchase provisions, if any.
12. Amortization schedule, if any.
13. Wire transfer information, if applicable.
14. Agents Commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
15. Whether such Book-Entry Note is issued at an original issue discount
("OID"), and, if so, the total amount of OID, the yield to maturity and
the initial accrual period of OID.
B. The Company will advise the Trustee by electronic transmission of
the information set forth in Settlement Procedure "A" above and the name of such
Agent. Each such communication by the Company shall constitute a representation
and warranty by the Company to the Trustee and each Agent that (i) such Note is
then, and at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such Note, and the Global Security
representing such Note, will
B-15
<PAGE> 48
conform with the terms of the Indenture and (iii) upon authentication and
delivery of such Global Security, the aggregate initial offering price of all
Notes issued under the Indenture will not exceed the maximum aggregate amount
then authorized (except for Book-Entry Notes represented by Global Securities
authenticated and delivered in exchange for or in lieu of Global Securities
pursuant to the Indenture and except for Certificated Notes authenticated and
delivered upon registration of transfer of, in exchange for, or in lieu of
Certificated Notes pursuant to any such Section).
C. The Trustee will assign a CUSIP number to the Global Security
representing such Note and enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, such Agent and Standard & Poor's Ratings Group:
1. The applicable information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by which
such date succeeds the related "DTC Regular Record Date" (which term
means the Regular Record Date except in the case of floating rate notes
which reset daily or weekly in which case it means the date 5 calendar
days immediately preceding the Interest Payment Date) and amount of
interest payable on such Interest Payment Date per $1,000 of principal
amount of such Note.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Note.
6. Whether such Global Security will represent any other Book-Entry Note
(to the extent known at such time).
D. Such Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written offer of Notes
and the confirmation and payment by the purchaser of the Note.
Such Agent will confirm the purchase of such Note to the purchaser
either by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
E. The Trustee, as Trustee, will complete and authenticate the note
certificate evidencing the Global Security representing such Book-Entry Note.
F. DTC will credit such Note to the Trustee's participant account at
DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note to such Agent's participant
account and (ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less such
Agent's commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (x) the Global Security
representing such Book-Entry Note has been issued and authenticated and (y) the
Trustee is holding such Global Security pursuant to the Medium-Term Note
Certificate Agreement between the Trustee and DTC (the "Certificate Agreement").
B-16
<PAGE> 49
H. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note to the participant accounts of
the Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of such Agent
for an amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement date.
J. The Trustee will credit to an account of the Company maintained at
the Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "G".
SETTLEMENT PROCEDURES TIMETABLE. For orders of Book-Entry Notes
solicited by an Agent, as agent, and accepted by the Company for settlement,
Settlement Procedures "A" through "J" set forth above shall be completed as soon
as possible but not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M. on Settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon and 2:00 P.M., as the case may
be, on the first Business Day after the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B" and "C" shall
be completed as soon as such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the second Business Day before the
Settlement date. Settlement Procedure "J" is subject to extension in accordance
with any extension of Fed wire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the Settlement date. If
Settlement of a Book-Entry Note is rescheduled or canceled, the Trustee will
deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled Settlement date.
FAILURE TO SETTLE. If the Trustee has not entered an SDFS deliver order
with respect to a Book-Entry Note pursuant to Settlement Procedure "G", then,
upon written request (which may be effected by facsimile transmission) of the
Company, the Trustee shall deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable but no later than 2:00 P.M. on any Business Day,
a
B-17
<PAGE> 50
withdrawal message instructing DTC to debit such Note to the Trustee's
participant account. DTC will process the withdrawal message, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Note that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to all the Book-Entry
Notes represented by a Global Security, the Trustee will mark such Global
Security "canceled", make appropriate entries in the Trustee's records and send
such canceled Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry Notes represented by
a Global Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the other of which shall represent
the other Book-Entry Notes previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security. If
the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such Note may enter
SDFS deliver orders through DTC's Participant Terminal System debiting such
Book-Entry Note free to such Agent's participant account and crediting such
Book-Entry Note free to the participant account of the Trustee and shall notify
the Trustee and the Company thereof. Thereafter, the Trustee (i) will
immediately notify the Company, once the Trustee has confirmed that such
Book-Entry Note has been credited to its participant account, and the Company
shall immediately transfer by Fed wire (immediately available funds) to such
Agent an amount equal to the amount with respect to such Book-Entry Note which
was previously sent by wire transfer to the account of the Company in accordance
with Settlement Procedure "J", and (ii) the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph. Such
debits and credits will be made on the Settlement date, if possible, and in any
event not later than 5:00 P.M. on the following Business Day. If such failure
shall have occurred for any reason other than a default by the Agent in the
performance of its obligations hereunder and under the Distribution Agreement,
then the Company will reimburse the Agent on an equitable basis for the loss of
the use of the funds during the period when they were credited to the account of
the Company. Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedure "E", for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to have been represented by
such Global Security and will make appropriate entries in its records.
TRUSTEE NOT TO RISK FUNDS. Nothing herein shall be deemed to require
the Trustee to risk or expend its own funds in connection with any payment to
the Company, DTC, the Agents, or the purchaser, it being understood by all
parties that payments made by the Trustee to the Company, DTC, the Agents, or
the purchaser shall be made only to such extent that funds are provided to the
Trustee for such purpose. Similarly, nothing herein shall alter any duty, or
limit or diminish any right or immunity, of the Trustee under the Indenture.
B-18
<PAGE> 51
Exhibit C
AMERCO
MEDIUM-TERM NOTES
FORM OF PURCHASE AGREEMENT
[date]
AMERCO
1325 Airmotive Way
Suite 100
Reno, Nevada 89502
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of
the Notes described in the Distribution Agreement dated September 10, 1996 (as
it may be supplemented or amended from time to time, the "Distribution
Agreement"):
Principal Amount: [$]__________________________
Specified Currency: _____________________________
Indexed Currency: _____________________________
Interest Rate: ________%
Discount: ________% of Principal Amount
Aggregate Price to be paid
to Company (in immediately
available funds): [$]__________________________
Settlement Date: _____________________________
Other Terms: _____________________________
In the case of Notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer of the Specified Currency for U.S.
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes denominated in such Specified
Currency electing to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including, without limitation, your obligations
pursuant to Section 6 and Section 7 thereof. [Include any other mutually agreed
closing conditions.]
C-1
<PAGE> 52
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the Company,
other than borrowings under your revolving credit agreements and lines of
credit, the private placement of securities and issuances of your commercial
paper; provided, however, that the foregoing covenant shall not apply to any
sale and leaseback financing with respect to rental trucks, trailers and related
equipment used by the Company in its operations.
We may terminate this Agreement, in our absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities, if prior to that time there shall have occurred any of the events or
changes set forth in Sections 5(j), 5(k) or 5(l) of the Distribution Agreement,
the effect of which, in any such case described in such Section 5(j) or 5(k),
is, in the judgment of the Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus.
This Agreement shall be governed by and construed in accordance with
the laws of New York.
[Insert name of Agent(s)]
By ________________________
Title:
Accepted:
AMERCO
By _________________________
Title:
C-2
<PAGE> 53
Exhibit D
AMERCO
MEDIUM-TERM NOTES
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ___
TO DISTRIBUTION AGREEMENT,
DATED SEPTEMBER 10, 1996, AS AMENDED
[Insert Title of Foreign Currency and,
in the case of Indexed Notes, the Indexed Basis]
The undersigned hereby agree that for the purposes of the issue and
sale of Notes denominated in [title of currency or currency unit] (the
"Specified Currency") [and indexed to [title of index basis] (the "Index
Basis")] pursuant to the Distribution Agreement, dated September 10, 1996 as it
may be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Specified Currency [and
indexed to the Index Basis], whether offered on an agency or principal basis,
but shall be of no effect with respect to Notes denominated in any currency or
currency unit other than the Specified Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement. The term[s] Agent [or Agents], as used in the
Distribution Agreement, shall be deemed to refer [only] to the undersigned
Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
[date]
AMERCO
By _______________________________________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering
of Notes in the Specified Currency]
By _______________________________________________
Name:
Title:
D-1
<PAGE> 1
EXHIBIT 4.1
AMERCO
TO
The First National Bank of Chicago, as Trustee
--------------------------------
Indenture
Dated as of September 10, 1996
--------------------------------
<PAGE> 2
AMERCO
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section
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)
(b) .................................... 703(a)
(c) .................................... 703(a)
(d) .................................... 703(b)
Section 314(a) ................................. 704
(a)(4) ................................. 101
1005
(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)
<PAGE> 3
Section 317(a)(1) .............................. 503
(a)(2) .............................. 504
(b) ................................. 1003
Section 318(a) ................................. 107
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<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............................................... 1
Act........................................................... 2
Affiliate..................................................... 2
Attributable Debt............................................. 2
Authenticating Agent.......................................... 2
Board of Directors............................................ 2
Board Resolution.............................................. 2
Book-Entry Security........................................... 2
Business Day.................................................. 2
Capital Stock................................................. 2
Capitalized Lease............................................. 3
Change of Control............................................. 3
Change of Control Offer....................................... 3
Change of Control Payment..................................... 3
Change of Control Purchase Price.............................. 3
Change of Control Triggering Event............................ 4
Commission.................................................... 4
Company....................................................... 4
Company Request............................................... 4
Consolidated Net Tangible Assets.............................. 4
Consolidated Subsidiary....................................... 4
Corporate Trust Office........................................ 4
Debt.......................................................... 4
Default....................................................... 5
Defaulted Interest............................................ 5
Depository.................................................... 5
Dollars....................................................... 5
Event of Default.............................................. 5
Exchange Act.................................................. 5
GAAP.......................................................... 5
Good Faith Contest............................................ 5
Holder........................................................ 5
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Indenture........................................................ 5
Intangibles...................................................... 6
Intellectual Properties.......................................... 6
Interest......................................................... 6
Interest Payment Date............................................ 6
Investment Grade Rating.......................................... 6
Issue Date....................................................... 6
Lien............................................................. 6
Maturity ........................................................ 7
Officers' Certificate............................................ 7
Opinion of Counsel............................................... 7
Original Issue Discount Security................................. 7
Outstanding...................................................... 7
Paying Agent..................................................... 8
Permitted Persons................................................ 8
Person ........................................................ 8
Place of Payment................................................. 8
Plan Consummation Period......................................... 9
Predecessor Security............................................. 9
Priority Debt.................................................... 9
Property......................................................... 9
Rating Agencies.................................................. 9
Rating Date...................................................... 9
Rating Decline................................................... 9
Redemption Date.................................................. 9
Redemption Price................................................. 10
Regular Record Date.............................................. 10
Rentals.......................................................... 10
Sale and Leaseback Transaction................................... 10
Secured Indebtedness............................................. 10
Securities....................................................... 10
Security Register................................................ 10
Special Record Date.............................................. 10
Stated Maturity.................................................. 10
Subsidiary....................................................... 10
Trustee.......................................................... 10
Trust Indenture Act.............................................. 11
U.S. Government Obligations...................................... 11
Vice President................................................... 11
Voting Stock..................................................... 11
Wholly Owned Consolidated Subsidiary............................. 11
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SECTION 102. Compliance Certificates and Opinions.......................... 11
SECTION 103. Form of Documents Delivered to Trustee........................ 12
SECTION 104. Acts of Holders; Record Dates................................. 13
SECTION 105. Notices, Etc., to Trustee and Company......................... 14
SECTION 106. Notice to Holders; Waiver..................................... 14
SECTION 107. Conflict with Trust Indenture Act............................. 15
SECTION 108. Effect of Headings and Table of Contents...................... 15
SECTION 109. Successors and Assigns........................................ 15
SECTION 110. Separability Clause........................................... 15
SECTION 111. Benefits of Indenture......................................... 15
SECTION 112. Governing Law................................................. 15
SECTION 113. Legal Holidays................................................ 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................... 16
SECTION 202. Form of Face of Security...................................... 16
SECTION 203. Form of Reverse of Security................................... 18
SECTION 204. Form of Legend for Book-Entry Securities...................... 23
SECTION 205. Form of Trustee's Certificate of Authentication............... 23
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................... 24
SECTION 302. Denominations................................................. 26
SECTION 303. Execution, Authentication, Delivery and Dating................ 26
SECTION 304. Temporary Securities.......................................... 28
SECTION 305. Registration, Registration of Transfer and Exchange........... 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............. 30
SECTION 307. Payment of Interest; Interest Rights Preserved................ 31
SECTION 308. Persons Deemed Owners......................................... 32
SECTION 309. Cancellation.................................................. 32
SECTION 310. Computation of Interest....................................... 33
SECTION 311. Book-Entry System............................................. 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................... 34
SECTION 402. Application of Trust Money.................................... 35
SECTION 403. Defeasance and Discharge of Securities of Any Series.......... 36
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................................... 37
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................. 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..... 41
SECTION 504. Trustee May File Proofs of Claim.................................... 41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities......... 42
SECTION 506. Application of Money Collected...................................... 42
SECTION 507. Limitation on Suits................................................. 43
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................................. 43
SECTION 509. Restoration of Rights and Remedies.................................. 43
SECTION 510. Rights and Remedies Cumulative...................................... 44
SECTION 511. Delay or Omission Not Waiver........................................ 44
SECTION 512. Control by Holders.................................................. 44
SECTION 513. Waiver of Past Defaults............................................. 45
SECTION 514. Undertaking for Costs............................................... 45
SECTION 515. Waiver of Stay or Extension Laws.................................... 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................. 46
SECTION 602. Notice of Defaults.................................................. 46
SECTION 603. Certain Rights of Trustee........................................... 47
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............. 48
SECTION 605. May Hold Securities................................................. 48
SECTION 606. Money Held in Trust................................................. 48
SECTION 607. Compensation and Reimbursement...................................... 48
SECTION 608. Disqualification; Conflicting Interests............................. 49
SECTION 609. Corporate Trustee Required; Eligibility............................. 49
SECTION 610. Resignation and Removal; Appointment of Successor................... 49
SECTION 611. Acceptance of Appointment by Successor.............................. 51
SECTION 612. Merger, Conversion, Consolidation or Succession to Business......... 52
SECTION 613. Preferential Collection of Claims Against Company................... 52
SECTION 614. Appointment of Authenticating Agent................................. 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders........... 54
SECTION 702. Preservation of Information; Communications to Holders.............. 54
SECTION 703. Reports by Trustee.................................................. 55
SECTION 704. Reports by Company.................................................. 55
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............. 55
SECTION 802. Successor Substituted............................................ 56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............... 56
SECTION 902. Supplemental Indentures with Consent of Holders.................. 58
SECTION 903. Execution of Supplemental Indentures............................. 59
SECTION 904. Effect of Supplemental Indentures................................ 59
SECTION 905. Conformity with Trust Indenture Act.............................. 59
SECTION 906. Reference in Securities to Supplemental Indentures............... 59
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest....................... 60
SECTION 1002. Maintenance of Office or Agency.................................. 60
SECTION 1003. Money for Securities Payments to Be Held in Trust................ 60
SECTION 1004. Limitation on Liens Securing Indebtedness........................ 61
SECTION 1005. Limitation on Sale and Leaseback................................. 63
SECTION 1006. Restrictive Agreements........................................... 64
SECTION 1007. Corporate Existence.............................................. 64
SECTION 1008. Defeasance of Certain Obligations................................ 64
SECTION 1009. Statement by Officers as to Default.............................. 66
SECTION 1010. Waiver of Certain Covenants...................................... 66
SECTION 1011. Purchase of Securities at the Option of Holders Upon a Change
of Control....................................................... 66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article......................................... 68
SECTION 1102. Election to Redeem; Notice to Trustee............................ 68
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................ 69
SECTION 1104. Notice of Redemption............................................. 69
SECTION 1105. Deposit of Redemption Price...................................... 70
SECTION 1106. Securities Payable on Redemption Date............................ 70
SECTION 1107. Securities Redeemed in Part...................................... 71
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article......................................... 71
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......... 71
SECTION 1203. Redemption of Securities for Sinking Fund..................... 72
TESTIMONIUM ................................................................ 70
SIGNATURES AND SEALS ....................................................... 70
ACKNOWLEDGEMENTS ........................................................... 72
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<PAGE> 10
INDENTURE, dated as of September 10, 1996, between AMERCO, a
corporation duly organized and existing under the laws of the State of Nevada
(herein called the "Company"), having its principal office at 1325 Airmotive
Way, Suite 100, Reno, Nevada 89502-3239, and The First National Bank of Chicago,
a national banking association, existing under the laws of the United States of
America, having its principal corporate office in Chicago, Illinois, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, 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 GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 11
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means indebtedness for money borrowed deemed to be
incurred in respect of a Sale and Leaseback Transaction and shall be, at the
date of determination, the present value (discounted at the actual rate of
interest implicit in such transaction, compounded annually), of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204 evidencing all or part of a series of Securities, authenticated and
delivered to the Depository for such series or its nominee, and registered in
the name of such Depository or nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares
or other equivalents (however designated) of corporate stock, partnership
interests, or any other participation, right, warrant, option or other interest
in the nature of an equity interest in such Person, but excluding debt
securities convertible or exchangeable into such equity interest.
2
<PAGE> 12
"Capitalized Lease" means any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee and its subsidiaries in accordance with GAAP.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (within the meaning of Sections 13(d) and
14(d) of the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act;
provided, however, that a group formed solely for the purpose of voting
securities shall not be deemed to be a group for purposes of this definition),
other than the Company, any employee benefit plan of the Company or any
Subsidiary, or Permitted Persons, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 35% or
more of the total voting power of the fully diluted Voting Stock of the Company,
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors of the
Company or whose nomination for election by the shareholders of the Company was
approved by a vote of 66-2/3% of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office, (iii) the Company consolidates or merges with or into any other Person
or any other Person consolidates or merges with or into the Company, in either
case, other than a consolidation or merger (a) with a Wholly-Owned Consolidated
Subsidiary in which all of the Voting Stock of the Company outstanding
immediately prior to the effectiveness thereof is changed into or exchanged for
substantially the same consideration or (b) (1) pursuant to a transaction in
which the outstanding Voting Stock of the Company is changed into or exchanged
for cash, securities or other Property with the effect that the "beneficial
owners" of the outstanding Voting Stock of the Company, immediately prior to
such transaction, beneficially own, directly or indirectly, more than 50% of the
total voting power of the fully diluted Voting Stock of the surviving
corporation immediately following such transaction and (2) no "person" or
"group", other than the Company, any employee benefit plan of the Company or any
Subsidiary, or Permitted Persons, beneficially owns, directly or indirectly, 35%
or more of the total voting power of the fully diluted Voting Stock of the
surviving corporation immediately following such transaction, or (iv) the
Company sells, conveys, transfers or leases, directly or indirectly, all or
substantially all of its assets to any Person other than a Wholly-Owned
Consolidated Subsidiary.
"Change of Control Offer" has the meaning specified in Section 1011
hereof.
"Change of Control Payment" has the meaning specified in Section 1011
hereof.
"Change of Control Purchase Price" has the meaning specified in Section
1011 hereof.
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<PAGE> 13
"Change of Control Triggering Event" means the occurrence of both a
Change of Control and a Rating Decline with respect to the Securities.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934 (the
"Exchange Act"), 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 a Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Tangible Assets" means, as of the date of any
determination thereof, the total amount of all assets of the Company and its
Consolidated Subsidiaries (less depreciation, depletion and other properly
deductible valuation reserves) after deducting Intangibles.
"Consolidated Subsidiary" means any Subsidiary of the Company or of any
Consolidated Subsidiary which is consolidated with the Company for financial
reporting purposes in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee in Chicago,
Illinois at which at any particular time its corporate trust business shall be
administered, which as of the date of this Indenture is the address of the
Trustee set forth in Section 105.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debt" of the Company or any Subsidiary thereof means, collectively,
(i) any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or any Subsidiary (excluding any indebtedness for money
borrowed by the Company from any Affiliate thereof) or (ii) any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company
(excluding any indebtedness for money borrowed by the Company from any Affiliate
thereof) or any Subsidiary (excluding any indebtedness for money borrowed by any
Subsidiary from any Affiliate thereof), whether such indebtedness now exists or
shall hereafter be created.
4
<PAGE> 14
"Default" means an event which, with the giving of notice or the lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository by the Company pursuant to
Section 301 which must be a clearing agency registered under the Exchange Act,
and if at any time there is more than one such Person, "Depository" shall mean
the Depository with respect to the Securities of that series.
"Dollars" means the lawful currency of the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means United States generally accepted accounting principles as
in effect as of the date of determination, unless otherwise stated.
"Good Faith Contest" means, with respect to any tax, assessment, Lien,
obligation, claim, liability, judgment, injunction, award, decree, order, law,
regulation, statute or similar item, any challenge or contest thereof by
appropriate proceedings timely initiated in good faith by the Person subject
thereto for which adequate reserves therefor have been taken in accordance with
GAAP.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"indebtedness for money borrowed", when used with respect to the
Company or any Subsidiary, means any obligation of, or any obligation guaranteed
by, the Company or any Subsidiary for the repayment of borrowed money, whether
or not evidenced by bonds, debentures, notes or other written instruments, and
any deferred obligation of, or any such obligation guaranteed by, the Company
for the payment of the purchase price of Property or assets.
"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. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
5
<PAGE> 15
"Intangibles" means all Intellectual Properties and all goodwill,
patents, trade names, trademarks, copyrights, franchises, experimental expense,
organization expense, unamortized debt discount and expense, deferred assets
(other than prepaid insurance, prepaid taxes, prepaid advertising, prepaid
licensing and other similar expenses prepaid in the ordinary course of
business), amounts invested in or advanced to or equity in the Company's
Subsidiaries other than Consolidated Subsidiaries less any writedowns thereof,
the excess of cost of shares acquired over book value of related assets, any
increase in the value of a fixed asset arising from a reappraisal, revaluation
or write-up thereof, and such other assets as are properly classified as
"intangible assets" in accordance with GAAP.
"Intellectual Properties" means all material patents, patent
applications, copyrights, copyright applications, trade secrets, trade names and
trademarks, technologies, methods, processes or other proprietary properties or
information which are used by the Company and its Consolidated Subsidiaries in
the conduct of their business and are either owned by them or are used, employed
or practiced by them under valid and existing licenses, grants, "shop rights" or
other rights.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's Investors Service, Inc. (or any successor to the
rating agency business thereof), BBB- (or the equivalent) by Standard & Poor's
Rating Group (or any successor to the rating agency business thereof) and BBB-
(or the equivalent) by Duff & Phelps Credit Rating Co. (or any successor to the
rating agency business thereof).
"Issue Date" means, with respect to any series of Securities, the date
of initial issuance of such series.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest or lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
bankers' liens, setoffs and similar arrangements, leases and other title
exceptions and encumbrances (including, with respect to stock, stockholder
agreements, voting trust agreements, buy-back agreements and all similar
arrangements) affecting Property. For the purposes hereunder, the Company or a
Consolidated Subsidiary shall be deemed to be the owner of any Property which it
has acquired or holds subject to a conditional sale agreement, Capitalized
6
<PAGE> 16
Lease or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes and such
retention or vesting shall constitute a Lien.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption 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' Certificates given pursuant to Section 1009 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"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
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 in accordance with
Section 401; 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;
(iii) Securities for whose payment or redemption money or U.S.
Government Obligations in the necessary amount has been theretofore
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) in trust for the holders of such
Securities in accordance with Section 403; and
(iv) 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
7
<PAGE> 17
which there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
Dollar equivalent, determined in the manner provided as contemplated by Section
301 on the Issue Date of such Security, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent on the Issue Date
of such Security of the amount determined as provided in (i) above) of such
Security, and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Persons" means (i) Edward J. Shoen, Mark V. Shoen, James P.
Shoen, Paul F. Shoen, Sophia M. Shoen (and during the Plan Consummation Period
only, Samuel W. Shoen, Michael L. Shoen, and Katrina Shoen Carlson) and the
spouse and lineal descendant of each such individual, the spouses of each such
lineal descendants and the lineal descendants of such spouses, (ii) any trusts
for the primary benefit of, the executor or administrator of the estate of, or
other legal representative of, any of the individuals referred to in the
foregoing clause (i), and (iii) any corporation with respect to which all the
Voting Stock thereof is, directly or indirectly, owned by any of the individuals
referred to in the preceding clause (i).
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
8
<PAGE> 18
"Plan Consummation Period" means the period beginning on the Issue Date
and ending on the date of purchase by the Company (directly or indirectly) of
non-serial common stock, par value $0.25 per share, of the Company held by
Samuel W. Shoen, Michael L. Shoen, and Katrina Shoen Carlson or any corporation
with respect to which all the Voting Stock thereof is, directly or indirectly,
owned by any of the foregoing individuals.
"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.
"Priority Debt" means (i) indebtedness for money borrowed of any
Consolidated Subsidiary, except indebtedness for money borrowed issued to and
held by the Company or a Wholly Owned Consolidated Subsidiary, and (but without
duplication) (ii) Secured Indebtedness.
"Property" means any kind of property or asset, whether real, personal
or mixed, and whether tangible or intangible.
"Rating Agencies" means Standard & Poor's Rating Group, Duff & Phelps
Credit Rating Co. and Moody's Investors Service, Inc. or any successor to the
respective rating agency businesses thereof.
"Rating Date" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention of the Company to effect a Change of Control.
"Rating Decline" means, with the respect to the Securities, the
occurrence of the following on, or within 90 days after, the date of public
notice of the occurrence of a Change of Control or of the intention by the
Company to effect a Change of Control (which period shall be extended so long as
the rating of such Securities is under publicly announced consideration for
possible downgrade by any of the Rating Agencies): (a) in the event the
Securities were assigned an Investment Grade Rating by at least two of the three
Rating Agencies on the Rating Date, the rating of the Securities by both
Standard & Poor's Rating Group and Moody's Investors Service, Inc. shall
decrease below an Investment Grade Rating; or (b) in the event the Securities
were rated below an Investment Grade Rating by at least two of the three Rating
Agencies on the Rating Date, the rating of the Securities by both Standard &
Poor's Rating Group and Moody's Investors Service, Inc. shall decrease by one or
more gradations (including gradations within rating categories as well as
between rating categories).
"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.
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"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Rentals" means and includes, as of the date of any determination
thereof, all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
Property) payable by the Company or a Consolidated Subsidiary, as lessee or
sublessee under a lease of real or personal Property, but shall be exclusive of
any amounts required to be paid by the Company or a Consolidated Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Sale and Leaseback Transaction" has the meaning specified in Section
1005 hereof.
"Secured Indebtedness" means any indebtedness for money borrowed,
whether of the Company or any Consolidated Subsidiary, secured by any Lien on
any Property of the Company or any Consolidated Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"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 principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Person 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions
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of this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"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.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"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".
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled to vote in the election of
directors (or Persons performing similar functions) or to direct the business
and affairs of the issuer of such Capital Stock in the absence of contingencies.
"Wholly Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the outstanding Capital Stock of which (except for directors'
qualifying shares to the extent required by applicable law) is owned by the
Company and/or its Wholly Owned Consolidated Subsidiaries.
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
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shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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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 authority 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 of Securities of any series 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 of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series 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 for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
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
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<PAGE> 23
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 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 office, One First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attention:
Corporate Trust Administration, or at such other address as furnished
in writing to the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, 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.
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<PAGE> 24
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 Trust Indenture Act 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 excluded, as the case may
be.
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 its 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 effected 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 and the Holders, 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.
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 at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section))
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<PAGE> 25
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, 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 of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
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. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY
IS ___% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS __________, 199_[,] [AND] THE
YIELD TO MATURITY IS ___% [, THE METHOD USED TO DETERMINE THE YIELD IS ________
AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD
OF __________, 19__ TO _______, 19_ IS __% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY].
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<PAGE> 26
AMERCO
-----------------------------------
No. ___________ $________
AMERCO, a corporation duly organized and existing under the laws of
Nevada (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________________________ or registered assigns, the
principal sum of ______________________ Dollars on
____________________________________________ [if the Security is to bear
interest prior to Maturity, insert--, and to pay interest thereon from
___________ or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, on ________ and _______ (each "an Interest
Payment Date"), commencing ___________, at the rate of _____% per annum, until
the principal hereof is paid or made available for payment [if applicable,
insert--, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of __% per annum on any overdue principal and premium
and on any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
___________________________ or ____________________________(whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
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<PAGE> 27
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in __________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert--;
provided, however, that at the option of the Company payment of interest may be
made by: (1) wire transfer on the date of payment in immediately available
federal funds or next day funds to an account specified by written notice to the
Trustee from any Holder of Securities; (2) any similar manner that such Holder
may designate in writing to the Trustee; or (3) by check mailed to the address
of the Holder].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AMERCO
By:________________________
ATTEST
By: ________________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September __, 1996, (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, 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 Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be,
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<PAGE> 28
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $_________].
Pursuant to Section 1011 of the Indenture, upon the occurrence of a
Change of Control Triggering Event with respect to the Securities, each Holder
of such Securities shall have the right to require the Company to purchase such
Holder's Securities, in whole or in part, in a principal amount that is an
integral multiple of $1,000, or at a purchase price equal to 101% of the
principal amount thereof on any Change of Control Payment Date plus accrued and
unpaid interest, if any, to the Change of Control Payment Date. The Holder of
this Security may elect to have this Security or a portion thereof, in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer.
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert--(1) on ___________ in any year commencing with the year _____ and ending
with the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after _________, 19__], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ____________, ____%, and if
redeemed] during the 12-month period beginning _________ of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business as the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ___________ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ___________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning ___________ of the
years indicated,
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Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of the principal
amount,together in the case of any such redemption (whether through operation of
the sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
____________, redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
______________ in each year beginning with the year ____ and ending with the
year ____ of [not less than $_______ ("mandatory sinking fund") and not more
than] $_______ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due].]
[If the Security is subject to redemption, insert--In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert--If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with
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<PAGE> 30
the effect provided in the Indenture. Such amount shall be equal to--insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority of aggregate principal amount or at least
two-thirds of the aggregate principal amount, as applicable, of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof 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 the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other
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governmental charge payable in connection therewith. Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
In connection with the Change of Control Offer made pursuant to Section
1011 of the Indenture, the undersigned registered Holder hereby elects
to have
/ / the entire principal amount
/ / $_______________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or _____________ an amount in cash equal to
101% of the principal amount indicated in the preceding sentences plus
accrued and unpaid interest thereon, if any, to the Change of Control
Payment Date.
Dated:___________________
______________________________ _____________________________
Signature of Registered Holder Signature Guaranteed
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Security in every particular, without alteration
or any change whatsoever.
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification Number:
______________________________________________
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Please print or type name and address, including the zip code of the
assignee:
______________________________________________
the attached Note and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________
as attorney to transfer said Note on the books of the Company with full power
and substitution in the premises.
Date: _____________________
________________________________________
NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the attached Note in
every particular, without alteration or
change whatsoever.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository or a successor depository. This
Security is not exchangeable for Securities registered in the name of a
Person other than the Depository or its nominee except in the limited
circumstances described in the Indenture, and no transfer of this
Security (other than transfer of this 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 the limited circumstances described in the
Indenture."
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
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<PAGE> 33
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago
As Trustee
By:________________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
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<PAGE> 34
(5) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable, where any Securities of
the series may be surrendered for registration or transfer, where any Securities
of the series may be surrendered for exchange, and where notices or demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be delivered;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) the application, if any, of Section 403 to the Securities of the
series;
(11) the application, if any, of Section 1008 to the Securities of the
series;
(12) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Securities of the series shall
be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
101;
(13) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(14) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case, the
Depository with respect to such Book-Entry Security or Securities and the
circumstances under which any such Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered,
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<PAGE> 35
in the name of a Person other than such Depository or its nominee, if other than
as set forth in Section 305;
(15) if other than the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(16) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(17) any Event of Default with respect to the Securities of the series,
if not otherwise set forth herein; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 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
Treasurer, one of its Assistant Treasurers, its
26
<PAGE> 36
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered
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<PAGE> 37
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute, and the
Trustee shall authenticate and deliver in exchange therefor, one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 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 of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company
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<PAGE> 38
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 of any
series at the office or agency in a Place of Payment for that series, 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
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 (including
any notice of Change of Central Offers pursuant to Section 1011) and ending at
the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, no Book-Entry Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Sections
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<PAGE> 39
304, 306, 906 or 1107 or otherwise, in the name of a Person other than the
Depository for such Book-Entry Security or its nominee until (i) the Depository
with respect to a Book-Entry Security notifies the Company that it is unwilling
or unable to continue as Depository for such Book-Entry Security or the
Depository ceases to be a clearing agency registered under the Exchange Act at a
time when such Depository is required to be so registered in order to act as
Depository, (ii) the Company executes and delivers to the Trustee a Company
Order that such Book-Entry Security shall be so transferable and exchangeable or
(iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities of such series. Upon the occurrence in respect of any
Book-Entry Security of any series of any one or more of the conditions specified
in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions
as may be specified as contemplated by Section 301 for such series, such
Book-Entry Security may be registered for transfer or exchange for Securities
registered in the names of, or authenticated and delivered to, such Persons as
the Depository with respect to such series shall direct.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Book-Entry Security, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall also be a Book-Entry Security
and bear the legend specified in Section 204.
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 the same series and 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 the same series and 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.
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Every new Security of any series 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 of that series 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall not be more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
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 of
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<PAGE> 41
such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may pay any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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 may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any 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.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and 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 may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered 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
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<PAGE> 42
Securities held by the Trustee shall be destroyed and a certificate of
destruction shall be furnished to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Book-Entry System.
The Securities shall be represented by one or more permanent global
notes (each, a "Global Security") deposited with, or on behalf of, The
Depositary Trust Company, as Depository under the Indenture (the "Depository"),
and registered in the name of the Depository's nominee. Except as set forth in
the following paragraph, (1) owners of beneficial interests in a Global Security
shall not be entitled to have Securities represented by such Global Securities
registered in their names, will not receive or be entitled to receive physical
delivery of Securities in definitive form and shall not be considered the owners
or Holders thereof under the Indenture and (2) each Global Security may be
transferred, in whole and not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee. Accordingly, beneficial
interests in the Securities shall be shown on, and transfers thereof shall be
effected only through, records maintained by the Depository and its
participants.
Notwithstanding any provisions of Section 305 hereof, no Security that
is a Global Security shall be registered for transfer or exchange, or be
authenticated and delivered, and owners of beneficial interests in any Global
Security will not be entitled to receive Securities in definitive form and will
not be considered Holders of Securities unless (1) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time the Depository ceases to be a clearing agency
registered under the Exchange Act, (2) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so exchangeable or
(3) there shall have occurred and be continuing a Default or an Event of
Default. In such circumstances, upon surrender by the Depository or a successor
depository of any Global Security, Securities in definitive form will be issued
to each Person that the Depository or successor depository identifies as the
beneficial owner of the related Securities. Upon such issuance, the Trustee is
required to register such Securities in the name of, and cause such Securities
to be delivered to, such Person or Persons (or nominees thereof). Such
Securities would be issued in fully registered form without coupons, in
denominations of $1,000 and integral multiples thereof.
The Depository shall be permitted to take any action permitted to be
taken by an owner or Holder of Securities only at the direction of one or more
participants in the Depository, as it may from time to time determine.
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<PAGE> 43
Principal and interest payments on Securities registered in the name of
or held by the Depository or its nominee shall be made to the Depository or its
nominees, as the case may be, as the registered owner of the Global Security
representing such Securities. The Company and the Trustee shall treat the
Persons in whose name the Securities are registered as the Holders of such
Securities for the purpose of receiving payment of principal and interest on
such Securities and for all other purposes whatsoever. Therefore, none of the
Company, the Trustee or any Paying Agent has direct responsibility or liability
for the payment of principal and interest on the Securities to owners of
beneficial interests in any Global Security. Payments by direct and indirect
participants in the Depository shall be the responsibility of such participants.
The Securities shall trade in the Depository's Same-Day Funds
Settlement System until Maturity (or until they are subject to repurchase
pursuant to Section 1011 hereof or acceleration pursuant to Article Five
hereof), and secondary market trading activity in the Securities may be required
by the Depository to settle in immediately available funds.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 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
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company,
in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 614 and, if money or U.S. Government
Obligations shall have been deposited with the Trustee in accordance with
Section 403 or 1008, the obligations of the Company to the Trustee under Section
402(2), 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.
(1) Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 403 or
1008 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 403 or 1008, 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
premium, if any) and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 403 or 1008.
(2) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 403 or 1008 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
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(3) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 403 or 1008 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such
money or U.S. Government Obligations were deposited or received.
SECTION 403. Defeasance and Discharge of Securities of Any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of that series, the provisions of this Indenture
as it relates to such Outstanding Securities (except as to the rights of Holders
of Securities to receive, from the trust funds described in subparagraph (1)
below, payment of the principal of (and premium, if any) and any installment of
principal of (and premium, if any) or interest on such Securities on the Stated
Maturity of such principal or installment of principal or interest or any
mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and of such Securities, the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and the rights, powers, trusts, duties and immunities of the
Trustee hereunder) shall no longer be in effect, and the Trustee, at the expense
of the Company, shall, upon Company Request, execute proper instruments
acknowledging the same, provided that the following conditions have been
satisfied:
(1) the Company has deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609),
irrevocably (irrespective of whether the conditions in subparagraphs (2), (3),
(4) and (5) below have been satisfied, but subject to the provisions of Section
402(3) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities of that series, with reference to this Section
403, (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) of this subparagraph (1) money
in an amount, or (C) a combination thereof, sufficient,in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge (i)
the principal of (and premium, if any) and each installment of principal (and
premium, if any) and interest on such Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to Securities
of such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
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(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or
event which with the giving of notice or lapse of time or both, would become an
Event of Default under Section 501(5) or Section 501(6) shall have occurred and
be continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal Income Tax law,
in either case (A) or (B) to the effect that Holders of the Securities of that
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge had
not occurred; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to the defeasance and discharge of the entire indebtedness on all
Outstanding Securities of any such series as contemplated by this Section have
been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstated
and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it 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; or
(7) default (including a default with respect to debt securities of any
series other than the Securities) under any Debt of the Company or any
Subsidiary thereof, which default shall have resulted (i) in a failure to pay an
aggregate principal amount exceeding $10,000,000 of such Debt at the later of
final maturity thereof or upon the expiration of any applicable period of grace
with respect to such principal amount or (ii) in such Debt in an aggregate
principal amount exceeding $10,000,000 becoming or being declared due and
payable
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prior to the date on which it would otherwise have become due and payable
without such Debt having been discharged, or such acceleration having been
rescinded or annulled, within a period of 15 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Securities, a written notice specifying such default and requiring the
Company to cause such Debt to be discharged or to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; provided, however, that the Trustee shall not be deemed to have
knowledge of such default unless either (A) an officer in the Corporate Trust
Administration of the Trustee shall have actual knowledge of such default or (B)
the Trustee shall have received written notice thereof from the Company, from
any Holder, from the holder of any such Debt or from the trustee under any such
mortgage, indenture or other instrument; or
(8) the failure to perform the obligations of the Company set forth in
Section 1011 hereof (including the obligation to purchase the Securities
required to be purchased pursuant to a Change of Control Offer in accordance
with the terms of such Change of Control Offer); or
(9) any other Event of Default provided with respect to Securities of
that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Book-Entry Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such Notice of Default, which record date shall be at the close of business on
the day the Trustee receives such Notice of Default. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such Notice of Default, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least 10% in
principal amount of the Outstanding Securities of such series, or their proxies,
shall have joined in such Notice of Default prior to the day which is 90 days
after such record date, such Notice of Default shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new Notice of Default which is
identical to a Notice of Default which has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 501.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a
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notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable, except that no such declaration shall be
required upon the occurrence of an Event of Default specified in Section 501(5)
or 501(6) hereof.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Securities,
(c) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal and premium, if any, of Securities
of that series 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.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or recision and annulment thereof, with respect to Securities of a
series all or part of which is represented by a Book-Entry Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior
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to the day which is 90 days after such record date, such declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission or annulment thereof, as
the case may be, which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
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 on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, 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 any
premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, 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,
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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.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium and 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 any premium and interest, respectively.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
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
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reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 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 Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Book-Entry Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the
Trustee
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receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that unless Holders of a majority in principal amount of the Outstanding
Securities of such series shall have joined in such notice prior to the day
which is 90 days after such record date, such notice shall automatically and
without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new notice identical to a
notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 512.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
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,
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and may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act.
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 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 and this Indenture. 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.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default 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(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. 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 with respect
to Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the process thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 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 with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
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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. 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.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(4) If at any time:
(a) 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
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(b) 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
(c) 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 with respect to all Securities, 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 with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (2) and (3) of this Section, as the case may be.
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(4) 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 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).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in
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accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago
As Trustee
By:________________________________
As Authenticating Agent
By:________________________________
Authorized Officer
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
(1) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date (or a date to be determined pursuant to Section
301 for Original Issue Discount Securities) and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; 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.
(1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of 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.
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(2) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(3) 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.
(1) The Trustee shall transmit to the Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
In the case of any reports pursuant to Section 313(a) of the Trust
Indenture Act, such reports shall be transmitted within 60 days after April 15
of each year commencing with the year 1997 and shall be dated as of April 15.
(2) A copy of each such report shall, at the time of such transmission
to the Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to 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 Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
where the Company is not the surviving corporation, or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, unless:
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(1) the corporation formed by such consolidation or into which the
Company is merged or 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 any premium and 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, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing;
(3) 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form or to facilitate the issuance of Securities in global
form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(z); or
(8) 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, provided that such action pursuant to this clause (8) shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect; or
(9) to secure the Securities.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the deletion of this
proviso, in accordance with the requirements of Sections 611(2) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such
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Persons, shall be entitled to consent to such supplemental indenture, whether or
not such Holders remain Holders after such record date; provided, that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further action
by any Holder be canceled and of no further effect.
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 of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities of that series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency 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 where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (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 of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Limitation on Liens Securing Indebtedness.
The Company shall not, and shall not permit any Consolidated Subsidiary
to, create or incur, or suffer to be incurred or to exist, at any time, any Lien
on its or their Property, whether now owned or hereafter acquired, or upon any
income or profits therefrom, to secure the payment of any indebtedness for money
borrowed of the Company or of any Consolidated Subsidiary or of any other
Person, unless all obligations of the Company on or in respect of the Securities
are equally and ratably and validly secured by such Lien by proceedings and
documents reasonably satisfactory to the Trustee, except that the provisions of
this Section 1004 shall not prohibit the following:
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(a) Liens existing as of the Issue Date securing indebtedness for
money borrowed of the Company and its Consolidated Subsidiaries outstanding
on such date;
(b) Liens (i) incurred after the Issue Date given (on or within
120 days of the date of acquisition, construction or improvement) to secure
the payment of the purchase price or construction costs incurred by the
Company or a Consolidated Subsidiary in connection with the acquisition,
construction or improvement of real and personal Property useful and
intended to be used in carrying on the business of the Company or such
Consolidated Subsidiary, or (ii) on fixed assets useful and intended to be
used in carrying on the business of the Company or a Consolidated
Subsidiary existing at the time of acquisition or construction thereof by
the Company or such Consolidated Subsidiary or at the time of acquisition
by the Company or a Consolidated Subsidiary Company of any business entity
then owning such fixed assets, whether or not such existing Liens were
given to secure the payment of the purchase price or construction costs of
the fixed assets to which they attach, so long as Liens permitted by this
clause (ii) were not incurred, extended or renewed in contemplation of such
acquisition or construction, provided that any such Liens permitted by this
clause (b) shall attach solely to the Property acquired, constructed,
improved or purchased.
(c) Liens for taxes, assessments or other governmental levies or
charges not yet due or which are subject to a Good Faith Contest;
(d) Liens incidental to the conduct of the Company's and its
Subsidiaries' businesses or their ownership of Property and other assets
not securing any indebtedness for money borrowed and not otherwise incurred
in connection with the borrowing of money or obtaining of credit, and which
do not in the aggregate materially diminish the value of the Company's or
Subsidiaries' Property or assets when taken as a whole, or materially
impair the use thereof in the operation of their businesses;
(e) Liens in respect of any interest or title of a lessor in any
Property subject to a Capitalized Lease permitted under Section 1005
hereof;
(f) Liens arising in respect of judgments against the Company,
except for any judgment in an amount in excess of $1,000,000 which is not
discharged or execution thereof stayed pending appeal within 45 days after
entry thereof;
(g) Liens in favor of the Company or any Consolidated Subsidiary
of the Company;
(h) Liens consisting of minor survey exceptions or minor
encumbrances, easements or reservations, or rights of others for
rights-of-way, utilities and other similar purposes, or zoning or other
restrictions as to use of real Property, that are necessary for the conduct
of the operations of the Company and its Subsidiaries or that customarily
exist on properties of corporations engaged in similar businesses and are
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similarly situated and that do not in any event materially impair their use
in the operations of the Company and its Subsidiaries; and
(i) Liens renewing, extending or refunding any Lien permitted by
the preceding clauses of this Section 1004; provided, however, that the
principal amount of indebtedness for money borrowed secured by such Lien
immediately prior thereto is not increased and such Lien is not extended to
any other assets or Property.
Notwithstanding the foregoing, the Company or any Consolidated
Subsidiary may create or assume Liens, in addition to those otherwise permitted
by the preceding clauses of the Section 1004, securing indebtedness for money
borrowed of the Company or any Consolidated Subsidiary issued or incurred after
the Issue Date, provided that at the time of such issuance or incurrence, the
aggregate amount of all Secured Indebtedness and Attributable Debt would not
exceed 15% of Consolidated Net Tangible Assets.
In the event that any Property of the Company or any Consolidated
Subsidiary is subjected to a Lien not otherwise permitted by this Section 1004,
the Company shall make or cause to be made a provision whereby the Securities
shall be secured (together with other indebtedness for money borrowed then
entitled thereto and equal in rank to the Securities), to the full extent
permitted under applicable law, equally and ratably with all other obligations
secured thereby, and in any case the Securities shall (but only in such event)
have the benefit, to the full extent that the Holders of the Securities may be
entitled thereto under applicable law, of an equitable Lien on such Property
equally and ratably securing the Securities and such other obligations.
SECTION 1005. Limitation on Sale and Leaseback.
The Company shall not, and shall not permit any Consolidated Subsidiary
to, enter into any arrangement, directly or indirectly, whereby the Company or
such Consolidated Subsidiary shall, in one transaction or a series of related
transactions, (x) sell, transfer or otherwise dispose of any Property owned by
the Company or any Consolidated Subsidiary and (y) more than 120 days after the
later of the date of initial acquisition of such Property or completion or
occupancy thereof, as the case may be, by the Company or such Consolidated
Subsidiary, rent or lease, as lessee, such Property or substantially identical
Property or any material part thereof (a "Sale and Leaseback Transaction"),
provided that the foregoing restriction shall not apply to any Sale and
Leaseback Transaction if (a) immediately after the consummation of such Sale and
Leaseback Transaction and after giving effect thereto, no Default or Event of
Default shall exist and (b) any one of the following conditions is satisfied:
(i) the lease concerned constitutes a Capitalized Lease and at
the time of entering into such Sale and Leaseback Transaction and after
giving effect thereto and to any Liens incurred pursuant to Section 1004
hereof, the aggregate amount of all Secured Indebtedness and Attributable
Debt would not exceed 15% of Consolidated Net Tangible Assets; or
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(ii) the lease has a term which in the aggregate would not
exceed 36 months (including any extensions or renewals thereof at the
option of the lessee); or
(iii) the sale of such Property is for cash consideration which
equals or exceeds the fair market value thereof (as determined in good
faith by the Company) and the net proceeds from such sale are applied,
within 30 days of the date of the sale thereof, to the payment (other than
payments due at maturity or in satisfaction of, or applied to, any
mandatory or scheduled payment or prepayment obligation) of indebtedness
for money borrowed of the Company which ranks, in right of payment, on a
parity with or senior to the Securities.
SECTION 1006. Restrictive Agreements.
The Company shall not, and shall not permit any of its Consolidated
Subsidiaries to, enter, into any indenture, agreement, instrument or other
arrangement which, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the ability of any Consolidated Subsidiary to make loans or advances to
the Company or to declare and pay dividends or make distribution on shares of
such Consolidated Subsidiary's capital stock (whether now or hereafter
outstanding); provided, however, that any agreement to subordinate indebtedness
for money borrowed, owing from any Consolidated Subsidiary to the Company or
owing between Consolidated Subsidiaries pursuant to any Priority Debt or to any
guarantee of such indebtedness for money borrowed, shall not be deemed to
violate this Section 1006 so long as any such agreement to subordinate does not
directly or indirectly prohibit or restrain the ability of any such Consolidated
Subsidiary to make loans or advances to the Company or to declare and pay
dividends or make distributions on shares of such Consolidated Subsidiary's
capital stock (whether now or hereafter outstanding).
SECTION 1007. Corporate Existence.
The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and material
rights (charter and statutory) and material franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company shall determine that the
preservation of such rights and franchises is no longer desirable in the conduct
of the business of the Company and its Consolidated Subsidiaries considered as a
whole, and that the loss thereof is not disadvantageous in any material respect
to the Holders of the Securities.
SECTION 1008. Defeasance of Certain Obligations.
If this Section 1008 is specified, as contemplated by Section 301, to
be applicable to Securities of any series, (i) the Company may omit to comply
with any term, provision or condition of those certain covenants established
pursuant to Sections 301, 1004, 1005, 1006, 1007, and 1011 hereof and to which
this Section 1008 is to be made applicable, and (ii) Section 501(4) with respect
to such covenants to which this Section 1008 is to be made applicable shall
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be deemed not to be an Event of Default, in each case with respect to the
Securities of that series, provided that the following conditions have been
satisfied:
(1) With reference to this Section 1008, the Company has deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) irrevocably (irrespective of whether the conditions
in subparagraphs (2), (3), (4), (5) and (6) below have been satisfied, but
subject to the provisions of Section 402(3) and the last paragraph of Section
1003), as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of that
series, (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) of this subparagraph (1) money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal (and premium, if any) and each installment of
principal (and premium, if any) and interest on the Outstanding Securities of
that series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities;
(2) Such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of the
Trust Indenture Act with respect to the Securities of any series;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or
event which with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 501(5) or Section 501(6) shall have occurred and
be continuing on the 91st day after such date;
(5) The Company has delivered to the Trustee an Opinion of Counsel to
the effect that Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal income tax
on the same amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred; and
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(6) 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 defeasance contemplated by this Section have been
complied with.
SECTION 1009. 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 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 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition of those certain covenants contained herein or
established pursuant to Section 301 hereof to which this Section 1010 is said to
be applicable, with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect. Notwithstanding anything in this Section 1010
to the contrary, no modification or amendment to this Indenture may waive the
Company's obligation to make a Change of Control Offer without the written
consent of Holders of at least two-thirds in aggregate principal amount of the
then Outstanding Securities.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such record
date or their duly designated proxies, and only such Persons, shall be entitled
to waive any such term, provision or condition hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series shall have waived such term, provision or condition prior to the date
which is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be canceled and of not
further effect.
SECTION 1011. Purchase of Securities at the Option of Holders Upon a Change of
Control.
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder of Securities shall have the right to require the Company to purchase all
or any part
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(equal to $1,000 or an integral multiple thereof) of such Holder's Securities
pursuant to the offer described below (the "Change of Control Offer") at a
purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the purchase date (the "Change of Control
Purchase Price") in accordance with the procedures set forth in this Section
1011.
(b) Within 30 days of any Change of Control Triggering Event, the
Company shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Jones News Service or similar business news service in the
United States and (ii) send by first-class mail, postage prepaid, to the Trustee
and to each Holder of the Securities, at its address appearing in the Securities
Register for the Securities, a notice stating:
(1) that a Change of Control Triggering Event has occurred and a Change of
Control Offer is being made pursuant to Section 1011 hereof and that
all Securities timely tendered shall be accepted for payment, subject
to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date, which date
shall be, subject to any contrary requirements of applicable law, a
Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date");
(3) that any Security (or portion thereof) accepted for payment (and duly
paid on the Change of Control Payment Date) pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(4) that any Securities (or portions thereof) not tendered shall continue
to accrue interest;
(5) a description of the transaction or transactions constituting the
Change of Control Triggering Event;
(6) that Holders accepting the offer to have their Securities purchased
pursuant to a Change of Control Offer will be required to surrender
such Securities, accompanied by a duly completed form of "Option of
Holder to Elect Purchase" contained on the reverse of such Securities,
to the Trustee as Securities Registrar at a Place of Payment specified
in the notice (or otherwise make effective delivery of the Security and
form of "Option of Holder to Elect Purchase" pursuant to book-entry
procedures and the related rules of the Depository) prior to the close
of business on the Business Day preceding the Change of Control Payment
Date;
(7) that Holders whose Securities are being purchased only in part will be
issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, provided that each Security
purchased and each such new Security
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issued shall be in a principal amount in denominations of $1,000 and
integral multiples thereof; and
(8) any other procedures (if any) that Holders of Securities must follow in
order to accept a Change of Control Offer or effect withdrawal of such
acceptance.
(c) On the Change of Control Payment Date, the Company shall (i) accept
for payment the Securities or portion thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Trustee money sufficient to pay the
aggregate Change of Control Purchase Price and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers'
Certificate indicating the Securities or portions thereof tendered to the
Company. The Trustee shall promptly mail to each Holder of Securities so
accepted payment in an amount equal to the Change of Control Purchase Price for
such Securities, and the Trustee shall promptly authenticate and mail to such
Holder a new Security equal in principal amount to any unpurchased portion of
the Securities surrendered, provided that each such new Security shall be issued
in an original principal amount in denominations of $1,000 and integral
multiples thereof.
(d) The Company shall comply, to the extent then applicable and
required by law, with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder in connection with the
purchase of Securities pursuant to the Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions relating to the Change of Control Offer, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described above by virtue thereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or by action taken pursuant to a Board Resolution. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
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Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate (but subject to compliance with the rules of any
Securities Exchange on which the Securities of such series may be listed) and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series; provided that if less than all the Securities of a series having
different tenor are to be redeemed, the specific Securities to be redeemed shall
be selected by the Company. If less than all of the Securities of such series
and of a specified tenor are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company (or, in the case of a
selection by the Company, the Company shall promptly notify the Trustee) in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given 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 state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) the CUSIP numbers, if any, of the Securities to be redeemed.
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 1105. 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 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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SECTION 1107. 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 the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Book-Entry Security is so surrendered, such
new Security so issued shall be a new Book-Entry Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
71
<PAGE> 81
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 and not more than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
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.
AMERCO,
a Nevada corporation
By: ____________________________________
Gary V. Klinefelter
Secretary and General Counsel
Attest:
_____________________________
John A. Lorentz
Assistant Secretary
72
<PAGE> 82
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:__________________________________
Its:_________________________________
Attest:
___________________________
___________________________
73
<PAGE> 83
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the 10th day of September, 1996, before me personally came Gary V.
Klinefelter, to me known, who, being by me duly sworn, did depose and say that
he is Secretary and General Counsel of AMERCO, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________________________
Notary Public
State of Arizona
My Commission expires:
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 10th day of September, 1996, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is __________________ of The First National Bank of Chicago, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
__________________________________________
Notary Public
State of Illinois
My Commission expires:
<PAGE> 1
EXHIBIT 4.3
AMERCO
TO
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
----------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 10, 1996
TO
INDENTURE
DATED AS OF SEPTEMBER 10, 1996
----------------
MEDIUM TERM NOTES
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the 10th day of September,
1996 (this "Supplemental Indenture"), between AMERCO, a corporation duly
organized and existing under the laws of the State of Nevada (herein called the
"Company"), having its principal office at 1325 Airmotive Way, Suite 100, Reno,
Nevada 89502-3239, and The First National Bank of Chicago, a national banking
association, existing under the laws of the United States of America, as Trustee
(herein called the "Trustee") under the Indenture dated as of September 10, 1996
between the Company and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance of its unsecured debentures, notes or other evidences
of indebtedness, to be issued from time to time in one or more series as
determined by the Company in accordance with the terms of the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as provided in the Indenture.
Pursuant to the terms of the Indenture, the Company desires to provide
for the establishment of a new series of notes to be known as its Medium Term
Notes (said series being hereinafter referred to as the "Notes"), the form and
substance of such Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this Supplemental Indenture.
All things necessary to make this Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof (as defined below), it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF SPECIAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
<PAGE> 3
(1) terms used herein and not otherwise defined herein shall have
the respective meanings assigned thereto in the Indenture, whether by
cross-reference or otherwise;
(2) the words "herein", "hereof" and "hereunder" and other words
of similar import, when used in this Supplemental Indenture, refer to
this Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision thereof.
SECTION 102. Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
SECTION 103. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
FORM OF THE NOTES
SECTION 201. Form of the Notes.
Each Fixed Rate Note (as defined in Section 301) shall be substantially
in the form set forth in Exhibit A; each Floating Rate Note (as defined in
Section 301) shall be substantially in the form set forth in Exhibit B; each
Currency Indexed Note (as defined in Section 301) shall be in a form provided by
the Company, reasonably agreed to by the Trustee and not inconsistent with the
terms of this Indenture and this Supplemental Indenture, containing the
provisions contained in Exhibit C; each Commodity Indexed Note and each Original
Issue Discount Note (as defined in Section 301) shall be in a form provided by
the Company, reasonably agreed to by the Trustee and not inconsistent with the
terms of the Indenture and this Supplemental Indenture.
ARTICLE THREE
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 301. Designation of Securities and Amounts Thereof.
There shall be and is hereby authorized a single series of Securities
designated the "Medium Term Notes" (herein called the "Notes"), limited in
aggregate principal amount to $600,000,000. Each Note shall be designated a
"Fixed Rate Note", a "Floating Rate Note", a "Currency Indexed Note", a
"Commodity Indexed Note" or an "Original Issue Discount Note".
SECTION 302. Payment of Principal and Interest.
Each Note shall mature on the date or dates set forth, and the
principal shall be due and payable to the Holders thereof (subject to Section
304 hereof) in accordance with, and interest
2
<PAGE> 4
thereon shall be paid at the rates, on the dates and on the terms set forth, on
the face and on the reverse of such Note.
For so long as the Notes are represented by Global Securities, all
payments of principal and interest shall be made by the Company in immediately
available funds 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 that the Company may at its option pay interest by check in the case of
a Note that is not a Global Security.
For so long as and to the extent that the Notes are represented by a
Global Security pursuant to Section 304, payments of principal and interest
shall be made in accordance with said Section 304. All other payments of
principal and interest shall be made to the registered Holders thereof by a
Paying Agent that the Company shall maintain, in the event that definitive Notes
shall have been issued, in The City of New York.
The Notes may not be redeemed prior to Maturity and shall not be
subject to any sinking fund.
SECTION 303. Ranking.
The Notes shall be general unsecured obligations of the Company. The
Notes shall rank pari passu in right of payment with all unsecured indebtedness
of the Company and senior in right of payment to any subordinated indebtedness
of the Company. SECTION 304. Payments on Global Securities.
Principal and interest payments on Notes registered in the name of or
held by the Depository or its nominee shall be made to the Depository or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Notes. The Company and the Trustee shall treat the Persons in
whose names the Notes are registered as the Holders of such Notes for the
purpose of receiving payment of principal and interest on such Notes and for all
other purposes whatsoever. Therefore, none of the Company, the Trustee or any
Paying Agent has any direct responsibility or liability for the payment of
principal and interest on the Notes to owners of beneficial interests in any
Global Security. Payments by direct and indirect participants in the Depository
shall be the responsibility of such participants. SECTION 305. Multi-Currency
Notes.
Unless otherwise indicated thereon, Notes will be denominated in U.S.
dollars, and payments of principal of, premium (if any) on and interest on such
Notes will be made in U.S. dollars. Notwithstanding the foregoing, Notes may be
denominated in a currency or currency unit other than U.S. dollars (referred to
herein as "Multi-Currency Notes"). Multi-Currency Notes shall be issued in
registered form only, without coupons. Unless otherwise specified thereon,
payment of the purchase price of Multi-Currency Notes shall be made in
immediately available funds. Payments on Multi-Currency Notes are subject to the
provisions applicable thereto set forth on the form of each Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Defeasance of the Notes
The Notes shall be subject to defeasance in accordance with the
provisions of Section 403 of the Indenture.
3
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental 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.
AMERCO
By:_________________________________
Gary V. Klinefelter
Secretary
Attest:
__________________________________
John A. Lorentz
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By__________________________________
Name: R.D. Manella
Title: Vice President
Attest:
__________________________________
Name: Jeffrey L. Kinney
Title: Assistant Vice President
4
<PAGE> 6
STATE OF ARIZONA )
COUNTY OF MARICOPA ) ss.:
On the 10th day of September, 1996, before me personally came Gary V.
Klinefelter, to me known, who, being by me duly sworn, did depose and say that
he is Secretary of AMERCO, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to the said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
---------------------------
Name:
Notary Public
State of Arizona
My Commission expires on:
STATE OF ILLINOIS )
COUNTY OF COOK ) ss.:
On the 10th day of September, 1996, before me personally came R.D.
Manella, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he signed his name thereto by like authority.
---------------------------
Name:
Notary Public
State of Illinois
My Commission expires on:
5
<PAGE> 7
EXHIBIT A
[FORM OF FIXED RATE NOTE]
[Face of Note]
CUSIP NO._____ AMERCO
REGISTERED NO. FX___ MEDIUM-TERM NOTE PRINCIPAL AMOUNT: _____
(Fixed Rate Note)
If this Note is a Book-Entry Note, the registered owner of this Note
(as indicated below) is The Depository Trust Company (the "Depositary") or a
nominee of the Depositary, and the following legend is applicable. Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to the Company or its agent for
registration of transfer, exchange or payment, and any certificate 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 is
made to CEDE & CO. or such other entity, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
<TABLE>
<S> <C> <C> <C>
OPTIONAL REDEMPTION: / / YES / / NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: [REDEMPTION PRICE: Initially
___% of Principal Amount and
declining by ___% of the Principal
Amount on each anniversary of
the Initial Redemption Date until
the Redemption Price is 100% of
the Principal Amount.]
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN / / YES / / NO
U.S. DOLLARS
AUTHORIZED
DENOMINATIONS
(If other than $1,000 and
integral multiples of $1,000
in excess thereof):
FORM: / / BOOK- ENTRY OPTION TO ELECT REPAYMENT: / / YES / / NO
/ / CERTIFICATED
PAYING AGENT (If other than OPTION REPAYMENT DATE[S]:
the Trustee):
INTEREST RATE: OPTION REPAYMENT PRICE[S]:
INTEREST PAYMENT DATES:
REGULAR RECORD DATES: OPTIONAL INTEREST RESET: / / YES / / NO
</TABLE>
A-1
<PAGE> 8
<TABLE>
<S> <C> <C> <C>
OVERDUE RATE: OPTIONAL INTEREST RESET
DATE[S]:
DEPOSITARY: OPTIONAL EXTENSIONS OF
ORIGINAL STATED MATURITY / / YES / / NO
DATE:
SINKING FUND: / / YES / / NO EXTENSION PERIOD:
CURRENCY DETERMINATION
AGENT:
AMORTIZING NOTE: / / YES / / NO NUMBER OF EXTENSION
PERIODS:
FINAL MATURITY DATE:
ANNEX ATTACHED (and OTHER PROVISIONS:
incorporated by / / YES / / NO
reference herein):
</TABLE>
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
NOTE: percentage of aggregate
principal amount):
/ / YES / / NO
YIELD TO MATURITY: SHORT ACCRUAL PERIOD METHOD USED TO DETERMINE
OID: YIELD FOR SHORT ACCRUAL
PERIOD:
/ / Approximate / / Exact
AMERCO, a corporation duly organized and existing under the laws of
Nevada (herein called the "Company." which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ______________________________ or registered
assigns, the principal sum specified above on the Stated Maturity shown above,
and to pay interest thereon from and including the Original Issue Date shown
above or from and including the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for, as
the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below), at the rate per
annum specified above, until the principal hereof is paid or made available for
payment and on the Stated Maturity, and, if specified above, interest will
accrue on any overdue principal and on any overdue installment of interest (to
the extent that such interest is legally enforceable) at the Overdue Rate per
annum specified above. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered in the Security Register at the close of business on the Regular
Record Date specified above next preceding such interest Payment Date. The first
payment of interest on any Note originally issued between
A-2
<PAGE> 9
a Regular Record Date and the next Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record Date to the
Holder on such next succeeding Regular Record Date. Except as otherwise provided
in the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
predecessor Notes) 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 is to be given to Holders of Notes of this series not less than
10 calendar 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 Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
If this Note is a Book-Entry Note as specified above, while this Note
is represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof. THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is specified on the face hereof as an Amortizing
Note, principal on this Note (other than interest, and if this Note is an
Amortizing Note, principal payable at Stated Maturity) will be made by mailing a
check to the Holder at the address of the Holder appearing in the Security
Register on the applicable Regular Record Date. Notwithstanding the foregoing,
at the option of the Company, all payments of interest and, if this is an
Amortizing Note, principal on this Note may be made by wire transfer of
immediately available funds to an account designated by the Holder at a bank
located in the United States.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the principal office of the Trustee in the Borough of Manhattan,
The City of New York, provided that this Note is presented to the Trustee in
time for the Trustee to make such payment in such funds in accordance with its
normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF AND THE ATTACHED ANNEX, IF ANY, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
A-3
<PAGE> 10
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or its successor as Trustee, or
its Authenticating Agent, by manual signature of an authorized signatory, this
Note will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal. Dated: AMERCO
By:________________________
Its:_______________________
Attest:____________________
Its:_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Securities
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:______________________________________
Authorized Signatory
A-4
<PAGE> 11
[Reverse of Note]
AMERCO
MEDIUM-TERM NOTE
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an indenture, dated as of September 10, 1996 and the
First Supplemental Indenture, dated as of September 10, 1996 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, 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 Company, the Trustee and the
Holders of the Notes and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Note is one of the Securities of the
series designated on the face hereof. The Notes may bear different dates, mature
at different times, bear interest at different rates, be subject to different
redemption provisions and may otherwise vary, all as provided in the Indenture.
SECTION 2. Payments. Interest on this Note will be payable on the
Interest Payment Date or Interest Payment Dates as specified on the face hereof
and, in either case, at Maturity.
Unless otherwise specified on the face hereof, payments on this Note
with respect to any Interest Payment Date or Maturity will include interest
accrued from and including the Original Issue Date, or from and including the
most recent Interest Payment to which interest has been paid or duly provided
for, to but excluding such Interest Payment Date or Maturity. Interest on this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
Unless otherwise specified on the face hereof, the Interest Payment
Dates for Fixed Rate Notes, including fixed Rate Amortizing Notes, will occur
semi-annually on each January 15 and July 15 and the Regular Record Dates will
be each January 1 and July 1 (whether or not a Business Day). Unless otherwise
specified on the face hereof, Interest Payment Dates for Fixed Rate Amortizing
Notes will occur quarterly on each January 15, April 15, July 15 and October 15,
if specified on the face hereof, and Regular Record Dates will be each January
1, April 1, July 1 and October 1 (whether or not a Business Day) next preceding
each Interest Payment Date. If any Interest Payment Date or the Maturity for any
Fixed Rate Note is a day that is not a Business Day, all payments to be made on
such day with respect to such Note will be made on the next day that is a
Business Day with the same force and effect as if made on the due date, and no
additional interest will be payable as a result of such delayed payment.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
All percentages resulting from any calculations with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one- millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday
that in The City of New York is not a day on which banking institutions are
authorized or required by law, regulation or executive order to close.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made
A-5
<PAGE> 12
with respect to payments made on this Note if an Event of Default has occurred
with respect hereto or upon the giving of a notice of redemption). A Holder
whose Note is registered in the name of a broker or nominee should contact such
broker or nominee to determine whether and how an election to receive payments
in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multicontributor pages of the Quoting Source for three (or two
if three are not available) major banks in The City of New York. The first three
(or two) such banks selected by the Currency Determination Agent which are
offering quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business Day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate for such date is not
then available, such payment will be made in the Specified Currency. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available such comparable
display or other comparable manner of obtaining quotations as shall be agreed
between the Company and the Currency Determination Agent. All currency exchange
costs associated with any payment in U.S. dollars on this Note will be borne by
the Holder by deductions from such payment. Any currency determination agent
(the "Currency Determination Agent") with respect to this Note is specified on
the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
SECTION 3. Redemption. This Note will be redeemable at the option of
the Company prior to the Stated Maturity only if an initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such Initial
Redemption Date in whole or from time to time in part in increments of $1,000 or
the minimum denomination, if any, specified on the face hereof (provided that
any remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption,
A-6
<PAGE> 13
but payments due with respect to this Note prior to the date of redemption will
be payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Indenture. The Company may exercise such option by causing the Trustee to
mail a notice of such redemption at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof.
SECTION 4. Repayment. Upon the occurrence of certain change of control
events set forth in the Indenture, or if so specified on the face hereof, this
Note will be repayable, in whole or in part, prior to Stated Maturity, as the
case may be, on the terms set forth in the Indenture, or at the option of the
Holder on the Optional Repayment Date or Dates specified on the face hereof at
the Optional Repayment Price or Prices specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of repayment. If this Note
is repayable in part pursuant to the preceding sentence, the principal amount of
the portion of this Note not being repaid must be $1,000 or an integral multiple
of $1,000 in excess thereof. In order for this Note to be repaid prior to Stated
Maturity, the Paying Agent must receive at least 30 but not more than 45
calendar days prior to an Optional Repayment Date (i) this Note with the form
below entitled "Option to Elect Repayment" duly completed or (ii) a telegram,
telex, facsimile transmission or letter (first class, postage prepaid) from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the Holder of this Note, the principal amount
of this Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms of this Note, a statement that
the option to elect repayment is being exercised thereby and a guarantee that
this Note with the form below entitled "Option to Elect Repayment" duly
completed will be received by the Paying Agent not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter. If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Paying Agent by such
fifth Business Day. Exercise of the repayment option by the Holder of this Note
will be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke such tender for repayment by written notice to the Paying
Agent received by 5:00 P.M., New York City time, on the tenth calendar day prior
to the Optional Repayment Date. The repayment option may be exercised by the
Holder of this Note for less than the entire principal amount of this Note
provided that the principal amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment this Note
will be cancelled and a new Note or Notes for the remaining principal amount
hereof will be issued in the name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof,
while this Note is represented by one or more Book-Entry Notes registered in the
name of the Depositary or its nominee, the option for repayment may be exercised
by a participant that has an account with the Depositary, on behalf of the
beneficial owner of this Note, by delivering a written notice substantially
similar to the form below entitled "Option to Elect Repayment" duly completed to
the Trustee at its Corporate Trust Office (or such other address of which the
Company will from time to time notify the Holders), at least 30 but not more
than 60 calendar days prior to an Optional Repayment Date. A notice of election
from a participant on behalf of the beneficial owner of this Note to exercise
the option to have this Note repaid must be received by the Trustee by 5:00
P.M., New York City time, on the last day for giving such notice. In order to
ensure that a notice is received by the Trustee on a particular day, the
beneficial owner of this Note must so direct the applicable participant before
such participant's deadline for accepting instructions for that day. Different
firms may have different deadlines for accepting instructions from their
customers. Accordingly, the beneficial owner of this note should consult the
participant through which such beneficial owner owns its interest herein for the
deadline for such participant. All notices shall be executed by a duly
authorized officer of such participant (with signatures guaranteed) and will be
irrevocable. In addition, the beneficial owner of this Note shall effect
delivery at the time such notice of election is given to the Depositary by
causing the applicable participant to transfer such beneficial owner's interest
in this Note, on the Depositary's records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face hereof,
the interest rate specified on the face hereof may be reset by the Company on
the Optional Interest Reset Date or Dates specified on the face hereof. The
Company may exercise such option by notifying the Trustee
A-7
<PAGE> 14
of such exercise at least 45 but not more than 60 calendar days prior to an
Optional Interest Reset Date. If the Company so notifies the Trustee of such
exercise, not later than 40 calendar days, prior to such Optional Interest Reset
Date, the Trustee will send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) to the Holder of this Note a
notice (the "Reset Notice") indicating (i) that the Company has elected to reset
the interest rate, (ii) such new interest rate and (iii) the provisions, if any,
for redemption during the period from such Optional Interest Reset Date to the
next Optional Interest Reset Date or, if there is no such next Optional Interest
Reset Date, to Stated Maturity of this Note (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to
an Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such higher interest rate to the Holder of this Note. Such notice will be
irrevocable. All Notes with respect to which the interest rate is reset on an
Optional Interest Reset Date to a higher interest rate will bear such higher
interest rate, whether or not tendered for repayment as provided in the next
paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset
the interest rate of this Note, the Holder of this Note will have the option to
elect repayment of this Note, in whole but not in part, by the Company on such
Optional Interest Reset Date at a price equal to the principal amount hereof
plus accrued and unpaid interest to but excluding such Optional Interest Reset
Date. In order for this Note to be so repaid on an Optional Interest Reset Date,
the Holder must follow the procedures specified under Section 4 for optional
repayment, except that the period for delivery of this Note or notification to
the Trustee will be at least 25 but not more than 35 calendar days prior to such
Optional Interest Reset Date. If the Holder has tendered this Note for repayment
following receipt of a Reset Notice, the Holder may revoke such tender for
repayment by written notice to the Trustee received by 5:00 P.M., New York City
time, on the tenth calendar day prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for one or more periods of from one to five whole years, as specified on
the face hereof (each an "Extension Period"), up to but not beyond the date (the
"Final Maturity Date") specified on the face hereof. The Company may exercise
such option with respect to this Note by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to the Stated Maturity of
this Note in effect prior to the exercise of such option (the "Original Stated
Maturity Date"). If the Company so notifies the Trustee of such exercise, the
Trustee will send, not later than 40 calendar days prior to the Original Stated
Maturity Date, by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) to the Holder of this Note a notice (the
"Extension Notice") relating to such Extension Period indicating (i) that the
Company has elected to extend the Stated Maturity of this Note, (ii) the new
Stated Maturity, (iii) the interest rate applicable to such Extension Period and
(iv) the provisions, if any, for redemption during such Extension Period,
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Extension
Period. Upon the Trustee's sending of the Extension Notice, the Stated Maturity
of this Note will be extended automatically and, except as modified by the
Extension Notice and as described in the next two paragraphs, this Note will
have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to
the Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to send by
telegram, telex, facsimile transmission or letter (first class, postage prepaid)
notice of such higher interest rate to the Holder of this Note. Such notice will
be irrevocable. All Notes with respect to which the Stated Maturity is extended
will bear such higher interest rate for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note (or an
Extension Period, as applicable), the Holder will have the option to elect
repayment of this Note by the Company on the Original Stated Maturity Date (or
last day of such Extension Period) at a price equal to the principal
A-8
<PAGE> 15
amount hereof, plus accrued and unpaid interest to but excluding such date. In
order for this Note to be so repaid on the Original Stated Maturity Date (or
last day of such Extension Period), the Holder of this Note must follow the
procedures specified under Section 4 for optional repayment, except that the
period for delivery of this Note or notification to the Trustee will be at least
25 but not more than 35 calendar days prior to the Original Stated Maturity Date
(or last day of such Extension Period). If the Holder has tendered this Note for
repayment following receipt of an Extension Notice, the Holder may revoke such
tender for repayment by written notice to the Trustee received prior to the 5:00
p.m., New York City time, on the tenth calendar day prior to the Original Stated
Maturity Date (or last day of such Extension Period).
SECTION 7. Sinking Fund. This Note is not subject to a sinking fund
unless otherwise specified on the face hereof.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note as
specified on the face hereof, the amount payable in the event the principal
amount hereof is declared to be due and payable immediately by reason of an
Event of Default or in the event of redemption or repayment hereof prior to the
Stated Maturity hereof, in lieu of the principal amount due at the Stated
Maturity hereof, will be the Amortized Face Amount of this Note as of the date
of declaration, redemption or repayment, as the case may be. The "Amortized Face
Amount" of this Note will be the amount equal to (a) the principal amount of
this Note multiplied by the Issue Price specified on the face hereof plus (b)
the portion of the difference between the dollar amount determined pursuant to
the preceding clause (a) and the principal amount hereof that has accreted at
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or repayment but in no event will the Amortized Face
Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared to be due and payable will be the Amortized Face Amount of
this Note as of the date of such declaration as specified under Section 8.
SECTION 10. Modification or Waiver; Obligation of the Company Absolute.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Outstanding Securities of each series, on behalf of the Holders of
Securities of such series, to waive, with respect to the Securities of such
series, compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note will be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related Events of Default, upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes are issuable only in global or certificated registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein specified and to the limitations described below, if
applicable, Notes are exchangeable for Notes of this series of like aggregate
principal amount and like Stated Maturity and
A-9
<PAGE> 16
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar (which will initially be the Trustee at
its principal corporate trust office located in The City of New York), duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series with like terms and conditions of
authorized denominations and for the same Stated Maturity and aggregate
principal amount, will be issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided in the Indenture, owners of
beneficial interests in this Book-Entry Note will not be entitled to receive
physical delivery of Notes in certificated registered form and will not be
considered the Holders thereof for any purpose under the Indenture.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and none of
the Company, the Trustee or any such agent will be affected by notice to the
contrary.
SECTION 15. Governing Law. The Indenture and the Notes will be governed
by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture will have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
will be deemed to include the Notes.
A-10
<PAGE> 17
OPTION TO ELECT REPAYMENT
[TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE AT THE OPTION
OF THE HOLDER AND THE HOLDER ELECTS TO EXERCISE SUCH RIGHTS]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof plus accrued and unpaid interest to but excluding the date of repayment,
if this Note is to be repaid pursuant to Section 4 of this Note, or (ii) 100% of
the principal amount of this Note plus accrued and unpaid interest to but
excluding the Optional Interest Reset Date, if this Note is to be repaid
pursuant to Section 5 hereof, or to but excluding the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. If a portion of
this Note is not being repaid pursuant to clause (i) above, specify the
principal amount to be repaid and the denomination or denominations (which will
be $100,000 or an integral multiple of $1,000 in excess thereof) of the Note or
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any specification, one such Note will be issued for the
portion not being repaid).
Dated: ___________________________
Principal amount to be repaid if amount to be repaid is pursuant to clause (i)
above and is less than the entire principal amount of this Note (principal
amount remaining must be an authorized denomination)
$______________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to be issued for the portion
of this Note not being repaid pursuant to clause (i) above
______________________________________________________
______________________________________________________
______________________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where is to be sent, if repaid:
______________________________________________________
______________________________________________________
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
______________________________________________________
A-11
<PAGE> 18
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT Custodian
-----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
-----------------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
/ /
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________ attorney to transfer said Note on the books of
the Company, with full power of substitution in the premises.
Dated:_________________________________________
Signature
Sign exactly as name appears on the front of this Note
[SIGNATURE MUST BE GUARANTEED by a commercial bank, a trust
company or by a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
A-12
<PAGE> 19
EXHIBIT B
[FORM OF FLOATING RATE NOTE]
[Face of Note]
CUSIP NO._______ AMERCO PRINCIPAL AMOUNT: ________
REGISTERED NO. FL___ MEDIUM-TERM NOTE
(Floating Rate)
If this Note is a Book-Entry Note, the registered owner of this Note
(as indicated below) is The Depository Trust Company (the "Depositary") or a
nominee of the Depositary, and the following legend is applicable: Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to the Company or its agent for
registration of transfer, exchange or payment, and any certificate 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 is
made to CEDE & CO. or such other entity, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
<TABLE>
<S> <C> <C>
OPTIONAL REDEMPTION / /YES / /NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: [REDEMPTION PRICE: Initially ___% of
Principal Amount and declining by
___% of the Principal Amount on each
anniversary of the Initial Redemption
Date until the Redemption Price is 100%
of the Principal Amount.]
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN
U.S. DOLLARS / /YES / /NO
AUTHORIZED DENOMINATIONS
(If other than $1,000 and integral
multiples of $1,000 in excess thereof):
FORM: / /BOOK-ENTRY OPTION TO ELECT REPAYMENT:
/ /CERTIFICATED / /YES / /NO
PAYING AGENT (if other OPTIONAL REPAYMENT DATE[S]:
than the Trustee):
INTEREST RATE BASIS: OPTIONAL REPAYMENT PRICE[S]:
INDEX MATURITY: OPTIONAL INTEREST RESET:
/ /YES / /NO
REGULAR RECORD DATES: OPTION INTEREST RESET DATE[S]:
INTEREST PAYMENT DATES:
INITIAL INTEREST RATE: OPTIONAL EXTENSIONS OF ORIGINAL
STATED MATURITY DATE: / /YES / /NO
MAXIMUM INTEREST RATE: EXTENSION PERIOD:
MINIMUM INTEREST RATE: NUMBER OF EXTENSION PERIODS:
SPREAD: FINAL MATURITY DATE:
SPREAD MULTIPLIER: OTHER PROVISIONS:
RESET PERIOD:
INTEREST RESET DATES:
INTEREST DETERMINATION DATES: ANNEX ATTACHED (and incorporated
by reference herein): / /YES / /NO
OVERDUE RATE:
SINKING FUND: / /YES / /NO
CALCULATION AGENT:
CURRENCY DETERMINATION AGENT:
AMORTIZING NOTE: / /YES / /NO
</TABLE>
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<PAGE> 20
DEPOSITARY:
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
percentage of aggregate
principal amount):
/ / Yes / / No
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO
DETERMINE YIELD FOR
SHORT ACCRUAL PERIOD:
/ / Approximate / / Exact
</TABLE>
AMERCO, a corporation duly organized and existing under the laws of
Nevada (herein called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to __________________________________________
or registered assigns, the principal sum specified above on the Stated Maturity
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for, as
the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Interest Rate Basis specified above, commencing
with the first such Interest Payment Date next succeeding the Original Issue
Date shown above (except as provided below) until the principal hereof is paid
or made available for payment and on the Stated Maturity, and, if specified
above, interest will accrue on any overdue principal and on any overdue
installment of interest (to the extent such interest is legally enforceable) at
the Overdue Rate per annum specified above. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered in the Security Register at the
close of business on the Regular Record Date specified above next preceding such
Interest Payment Date. The first payment of interest on any Note originally
issued between a Regular Record Date and the next Interest Payment Date will be
made on the Interest Payment Date following the next succeeding Regular Record
Date to the Holder on such next succeeding Regular Record Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more predecessor Notes) 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 is to be given to Holders of Notes of this series
not less than 10 calendar 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 Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
If this Note is a Book-Entry Note as specified above, while this Note
is represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is specified on the face hereof as an Amortizing
Note, principal on this Note (other than interest, and if this Note is an
Amortizing Note, principal payable at Stated Maturity) will be made by mailing a
check to the Holder at the address of the Holder appearing in the Security
Register on the applicable Regular Record Date. Notwithstanding the foregoing,
at the option of the Company, all payments of interest and, if this is an
Amortizing Note, principal on this Note may be made by wire transfer of
immediately available funds to an account designated by the Holder at a bank
located in the United States.
B-2
<PAGE> 21
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the principal office of the Trustee in the Borough of Manhattan,
The City of New York, provided that this Note is presented to the Trustee in
time for the Trustee to make such payment in such funds in accordance with its
normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF AND THE ATTACHED ANNEX, IF ANY, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
B-3
<PAGE> 22
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or its successor as Trustee, or
its Authenticating Agent, by manual signature of an authorized signatory, this
Note will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AMERCO
By:_________________________
Its:________________________
Attest:_____________________
Its:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Securities
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: ____________________________
Authorized Signatory
B-4
<PAGE> 23
[Reverse of Note]
AMERCO
MEDIUM-TERM NOTE
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of September 10, 1996 and the
First Supplemental Indenture, dated as of September 10, 1996 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, 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 Company, the Trustee and the
Holders of the Notes and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Note is one of the Securities of the
series designated on the face hereof. The Notes may bear different dates, mature
at different times, bear interest at different rates, be subject to different
redemption provisions and may otherwise vary, all as provided in the Indenture.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on
this Note will be equal to either (i) the interest rate calculated by reference
to the Interest Rate Basis specified on the face hereof plus or minus the
Spread, if any, or (ii) the interest rate calculated by reference to the
Interest Rate Basis specified on the face hereof multiplied by the Spread
Multiplier, if any. The "Spread" is the number of basis points (one basis point
equals one-hundredth of a percentage point) specified on the face hereof as
being applicable to this Note, and the "Spread Multiplier" is the percentage
specified on the face hereof as being applicable to this Note. Specified on the
face hereof is the Interest Rate Basis and the Spread or Spread Multiplier, if
any, and the maximum or minimum interest rate, if any, applicable to this Note.
Specified on the face hereof are particulars as to the Calculation Agent (unless
otherwise specified, ________________________________ (in such capacity, the
"Calculation Agent")), Index Maturity, Original Issue Date, the interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date specified on the face hereof (the "Initial Interest Rate"), Interest
Determination Dates, Interest Payment Dates, Regular Record Dates and Interest
Reset Dates with respect to this Note.
Except as provided below, the Interest Payment Dates for the payment of
interest and, if this Note is an Amortizing Note, principal on this Note will be
(i) if this Note resets daily, weekly or monthly, the third Wednesday of each
month or the third Wednesday of March, June, September and December of each
year, as specified on the face hereof; (ii) if this Note resets quarterly, the
third Wednesday of March, June, September and December of each year, as
specified on the face hereof; (iii) if this Note resets semiannually, the third
Wednesday of the two months of each year specified on the face hereof; and (iv)
if this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof; and, in each case, at Maturity. If any Interest
Payment Date, other than Maturity, for this Note is not a Business Day for this
Note, such Interest Payment Date will be postponed to the next day that is a
Business Day for this Note, except that if the Interest Rate Basis specified on
the face hereof is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the immediately preceding
Business Day. If the Maturity for this Note falls on a day that is not a
Business Day, payment of principal, premium, if any, and Interest to be made on
such day with respect to this Note will be made on the next that is a Business
Day with the same force and effect as if made on the due date, and no additional
interest will be payable on the date of payment for the period from and after
the due date.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such period being the "Reset Period" for
this Note, and the first day of each Reset Period being an "Interest Reset
Date"), as specified on the face hereof. Unless otherwise specified on the face
hereof, the Interest Reset Date will be, if this Note resets daily, each
Business Day for this Note; if this Note resets weekly (unless the Interest Rate
Basis specified on the face hereof is the Treasury Rate), the Wednesday of each
week; if this Note resets weekly and the Interest Rate Basis specified on the
face hereof is the Treasury Rate, the Tuesday of each week; if this Note resets
monthly (unless the Interest Rate Basis specified on the face hereof is the 11th
District Cost of Funds Rate), the third Wednesday of each month; if this Note
resets monthly and the Interest Rate Basis specified on the face hereof is the
11th District Cost of Funds Rate, the first calendar day of the month; if this
Note resets quarterly, the third Wednesday of each March, June, September and
December; if this Note resets semiannually, the third Wednesday of the two
months of each year specified on the face hereof; and if this Note resets
annually, the third Wednesday of the one month of each year
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<PAGE> 24
specified on the face hereof; provided, however, that the interest rate in
effect from the Original Issue Date to but excluding the first Interest Reset
Date will be the initial Interest Rate specified on the face hereof. If the
Interest Reset Date is not a Business Day for this Note, the Interest Reset Date
will be postponed to the next day that is a Business Day for this Note, except
that if the Interest Rate Basis specified on the face hereof is LIBOR, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
will be the immediately preceding Business Day. Each adjusted rate will be
applicable on and after the Interest Reset Date to which it relates to but
excluding the next succeeding Interest Reset Date or until Maturity.
The interest rate for each Reset Period will be the rate determined by
the Calculation Agent on the Calculation Date (as defined below) pertaining to
the Interest Determination Date pertaining to the Interest Reset Date for such
Reset Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date (a) if the Interest
Rate Basis specified on the face hereof is Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (b) if the Interest Rate Basis
specified on the face hereof is CD Rate (the "CD Interest Determination Date"),
(c) if the Interest Rate Basis specified on the face hereof is CMT Rate (the
"CMT Interest Determination Date"), (d) if the Interest Rate Basis specified on
the face hereof is Federal Funds Rate (the "Federal Funds Interest Determination
Date"), (e) if the Interest Rate Basis specified on the face hereof is Kenny
Rate (the "Kenny Rate Interest Determination Date") or (f) if the Interest Rate
Basis specified on the face hereof is Prime Rate (the "Prime Interest
Determination Date"), will be the second Business Day prior to such Interest
Reset Date as specified on the face hereof. Unless otherwise specified on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date, if the Interest Rate Basis specified on the face hereof is 11th District
Cost of Funds Rate (the "11th District Interest Determination Date"), will be
the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below under "Determination of 11th
District Cost of Funds Rate"). Unless otherwise specified on the face hereof,
the Interest Determination Date pertaining to an Interest Reset Date, if the
Interest Rate Basis specified on the face hereof is LIBOR (the "LIBOR Interest
Determination Date"), will be the second London Business Day immediately
preceding such Interest Reset Date. Unless otherwise specified on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date, if
the Interest Rate Basis specified on the face hereof is Treasury Rate (the
"Treasury Interest Determination Date"), will be the day of the week in which
such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is usually held on
the following Tuesday, except that such auction may be held on the preceding
Friday. If an auction is so held on the preceding Friday, such Friday will be
the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date falls on any Interest
Reset Date for this Note (if the Interest Rate Basis specified on the face
hereof is Treasury Rate), then such Interest Reset Date will instead be the
first Business Day immediately following such auction date. The "Calculation
Date" pertaining to any Interest Determination Date will be the earlier of (i)
the tenth calendar day after the Interest Determination Date or, if such day is
not a Business Day, the next day that is a Business Day, or (ii) the Business
Day preceding the applicable Interest Payment Date or Maturity, as the case may
be.
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close and, if the Interest Rate Basis specified
on the face hereof is LIBOR, is also a London Business Day. "London Business
Day" means any day (a) if the Designated LIBOR Currency is other than the ECU,
on which dealings in deposits in such Designated LIBOR Currency are transacted
in the London interbank market or (b) if the Designated LIBOR Currency is the
ECU, that is not designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments on ECUs will not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
B-6
<PAGE> 25
Unless otherwise specified on the face hereof, payments on this Note
with respect to any Interest Payment Date or Maturity will include interest
accrued from and including the Original Issue Date, or from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, to but excluding such Interest Payment Date or Maturity. Accrued
interest is calculated by multiplying the principal amount of this Note by an
accrued interest factor. This accrued interest factor is computed by adding the
interest factors calculated for each day from the Original Issue Date, or from
the last date to which interest has been paid or duly provided for, to the date
for which accrued interest is being calculated. The interest factor for each
such day is computed by dividing the interest rate applicable to such day by
360, if the Interest Rate Basis specified on the face hereof is Commercial Paper
Rate, CD Rate, Federal Funds Rate, 11th District Cost of Funds Rate, LIBOR or
Prime Rate, or by the actual number of days in the year, if the Interest Rate
Basis specified on the face hereof is CMT Rate or Treasury Rate, or by 365 days
if the Interest Rate Basis specified on the face hereof is Kenny Rate.
The Calculation Agent will calculate the interest rate on this Note, as
provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to this
Note. For purposes of calculating the rate of interest payable on this Note, the
Company will enter into an agreement with the Calculation Agent. The Calculation
Agent's determination of any interest rate will be final and binding in the
absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period will not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on this
Note will in no event be higher than the maximum rate permitted by New York or
other applicable law, as the same may be modified by United States law of
general application. Determination of Commercial Paper Rate. If the Interest
Rate Basis specified on the face hereof is Commercial Paper Rate, the interest
rate determined with respect to any Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified on the face hereof.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors ("H.15(519)")
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be the Money Market Yield of the rate on such Commercial
Paper Interest Determination Date for commercial paper having the Index Maturity
designated on the face hereof as published by the Federal Reserve Bank of New
York in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Commercial Paper." If by 3:00 P.M., New York City time, on
such Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate with respect to such
Commercial Paper Interest Determination Date will be calculated by the
Calculation Agent and will be the Money Market Yield of the arithmetic mean of
the offered rates (quoted on a bank discount basis) as of 11:00 A.M., New York
City time, on such Commercial Paper Interest Determination Date of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity designated on the face
hereof placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate with
respect to such Commercial Paper Interest Determination Date will be the
Commercial Paper Rate in effect immediately prior to such Commercial Paper
Interest Determination Date.
"Money Market Yield" will be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred-thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-----------
360 - (DxM)
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<PAGE> 26
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to any CD Interest
Determination Date will be the CD Rate on such CD Interest Determination Date
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, as specified on the face hereof.
"CD Rate" means, with respect to any CD Interest Determination Date,
the rate on such date for negotiable certificates of deposit having the Index
Maturity specified on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such CD Interest Determination Date, then the CD Rate with respect to such CD
Interest Determination Date will be the rate on such CD Interest Determination
Date for negotiable certificates of deposit having the Index Maturity specified
on the face hereof as published in Composite Quotations under the heading
"Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the CD Rate with respect to such CD Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 A.M., New York City time, on such
CD Interest Determination Date of three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the Index Maturity specified on the face hereof in
a denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date. Determination of CMT Rate. If the Interest Rate Basis specified on the
face hereof is CMT Rate, the interest rate determined with respect to any CMT
Interest Determination Date will be the CMT Rate on such CMT Interest
Determination Date plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified on the face hereof.
"CMT Rate" means, with respect to any CMT Interest Determination Date,
the rate displayed in the Designated CMT Telerate Page (as defined below) under
the caption "... Treasury Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, such CMT Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week, or the month, as applicable, ended
immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate with
respect to such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate with respect so such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate with respect to such CMT Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation
B-8
<PAGE> 27
(or, in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain three such
Treasury Note quotations, the CMT Rate with respect so such CMT Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on the CMT
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate will be the CMT Rate in effect immediately prior
to such CMT Interest Determination Date. If two Treasury Notes with an original
maturity as described in the third preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page will be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index will be two years. Determination of Federal Funds
Rate. If the Interest Rate Basis specified on the face hereof is Federal Funds
Rate, the interest rate determined with respect to any Federal Funds Interest
Determination Date will be the Federal Funds Rate on such Federal Funds Interest
Determination Date plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof.
"Federal Funds Rate" means, with respect to any Federal Funds Interest
Determination Date, the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Federal Funds Interest Determination Date, then the
Federal Funds Rate will be the rate on such Federal Funds Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If by 3:00 P.M., New York City time, on such Calculation
Date such rate is not published in either H.15(519) or Composite Quotations,
then the Federal Funds Rate with respect to such Federal Funds Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean (rounded, if necessary, to the nearest one hundred-thousandth of
a percent) of the rates as of 9:00 A.M., New York City time, on such Federal
Funds Interest Determination Date for the last transaction in overnight Federal
Funds arranged by three leading brokers of Federal Funds transactions in The
City of New York selected by the Calculation Agent; provided, however, that if
the brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate with respect to such Federal
Funds Interest Determination Date will be the Federal Funds Rate in effect
immediately prior to such Federal Funds Interest Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to any 11th District Interest Determination Date
will be the 11th District Cost of Funds Rate on such 11th District Interest
Determination Date plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof.
"11th District Cost of Funds Rate" means, with respect to any 11th
District Interest Determination Date, the rate equal to the monthly weighted
average cost of funds for the calendar month
B-9
<PAGE> 28
preceding such 11th District Interest Determination Date as set forth under the
caption "11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco
time, on such 11th District Interest Determination Date. If such rate does not
appear on Telerate page 7058 on any related 11th District Interest Determination
Date, the 11th District Cost of Funds Rate for such 11th District Interest
Determination Date will be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such cost
of funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such 11th District Interest Determination Date, then the 11th District
Cost of Funds Rate with respect to such 11th District Interest Determination
Date will be the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date. Kenny Rate Notes. If the Interest Rate
Basis specified on the face hereof is Kenny Rate, the interest rate determined
with respect to any Kenny Rate Interest Determination Date will be the Kenny
Rate on such Kenny Rate Interest Determination Date plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof.
"Kenny Rate" means, with respect to any Kenny Rate Interest
Determination Date, the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and will be, based upon 30-day yield evaluations at
par of bonds, the interest on which is exempt from Federal income taxation under
the Internal Revenue Code of 1986, as amended (the "Code"), of not less than
five high grade component issuers selected by Kenny which will include, without
limitation, issuers of general obligation bonds. The specified issuers included
among the component issuers may be changed from time to time by Kenny in its
discretion. The bonds on which the Weekly Index is based will not include any
bonds on which the interest is subject to a minimum tax or similar tax under the
Code unless all tax-exempt bonds are subject to such tax. In the event Kenny
ceases to make available such Weekly Index, a successor indexing agent will be
selected by the Calculation Agent, such index to reflect the prevailing rate for
bonds rated in the highest short-term rating category by Moody's Investor
Service, Inc. and Standard & Poor's Ratings Group in respect of issuers most
closely resembling the high grade component issuers selected by Kenny for its
Weekly Index, the interest on which is (A) variable on a weekly basis, (B)
exempt from Federal Income taxation under the Code and (C) not subject to a
minimum tax or similar tax under the Code unless all tax-exempt bonds are
subject to such tax. If such successor indexing agent is not available, the
Kenny Rate with respect to any Kenny Rate Interest Determination Date will be
67% of the rate determined as if the Treasury Rate option had been originally
selected. Determination of LIBOR. If the Interest Rate Basis specified on the
face hereof is LIBOR, the interest rate determined with respect to any LIBOR
Interest Determination Date will be LIBOR on such LIBOR Interest Determination
Date plus or minus the Spread, if any, or multiplied by the Spread Multiplier,
if any, specified on the face hereof.
LIBOR means, with respect to any LIBOR Interest Determination Date, the
rate determined by the Calculation Agent in accordance with the following
provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either, (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in
which case such single rate will be used) for deposits in the Designated
LIBOR Currency (as defined below) having the Index Maturity designated on
the face hereof, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, which appear on the
Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London
time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required)
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on
the face hereof, the rate for deposits in the Designated LIBOR Currency
having the Index Maturity specified on the face hereof, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page specified on
the face hereof as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date. Notwithstanding the foregoing, if fewer than two
offered rates appear on the Designated LIBOR Page with respect to LIBOR
Reuters (unless the specified Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate will be used), or if
no rate appears on the Designated LIBOR Page with respect to
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<PAGE> 29
LIBOR Telerate, whichever may be applicable, LIBOR with respect to such
LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with
respect to LIBOR Reuters (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate will be
used), or if no rate appears on the Designated LIBOR Page with respect to
LIBOR Telerate, as the case may be, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in the Designated LIBOR
Currency for the period of the Index Maturity specified on the face hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, to prime banks in the London interbank
market as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at such time.
If at least two such quotations are provided, LIBOR with respect to such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted as of 11:00 A.M. in the applicable Principal Financial Center (as
defined below), on such LIBOR Interest Determination Date by three major
banks in such Principal Financial center selected by the Calculation Agent
for loans in the Designated LIBOR Currency to leading banks, having the
Index Maturity specified on the face hereof in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency
in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR with respect to such LIBOR Interest Determination Date will
be LIBOR in effect immediately prior to such LIBOR Interest Determination
Date,
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated on the face hereof, the Designated
LIBOR Currency will be U.S. dollars.
"Designated LIBOR page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is specified on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable Designated LIBOR Currency (if "LIBOR Telerate" is
specified on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR for the applicable Designated LIBOR Currency
will be determined as if LIBOR Telerate (and, if the U.S. dollar is the
Designated LIBOR Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the
face hereof, the capital city of the country that issues as its legal lender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center will be The City of New York and
Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on the face
hereof if Prime Rate, the interest rate determined with respect to any Prime
Interest Determination Date will be the Prime Rate on such Prime Interest
Determination Date plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
"Prime Rate" means, with respect to any Prime Interest Determination
Date, the rate on such date set forth on such date as published in H.15(519)
under the heading "Bank Prime Loan." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Interest Determination Date, then the Prime Rate with
respect to such Prime Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the USPRIME 1 Page as such
bank's prime rate or base lending rate as in effect with respect to such Prime
Interest Determination Date. If fewer than four such rates appear on the USPRIME
1 Page with respect to such Prime Interest Determination Date, the Prime Rate
with respect to such Prime Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by 360 as of the
close of business on such Prime Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two quotations are provided,
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the Prime Rate with respect to such Prime Interest Determination Date will be
determined on the basis of the rates furnished in The City of New York by the
appropriate number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any state thereof, having total
equity capital of at least U.S. $500,000,000 and being subject to supervision or
examination by Federal or state authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the bank or trust company
selected as aforesaid is not quoting as mentioned in this sentence, the Prime
Rate with respect to such Prime Interest Determination Date will be the Prime
Rate in effect immediately prior to such Prime Interest Determination Date.
"USPRIME 1 Page" means the display designated as page "USPRIME 1" on the Reuters
Monitor Money Rate Service (or such other page as may replace the USPRIME 1 page
on the service for the purpose of displaying the prime rate or base lending rate
of major banks). Determination of Treasury Rate. If the Interest Rate Basis
specified on the face hereof if Treasury Rate, the interest rate determined with
respect to any Treasury Interest Determination Date will be the Treasury Rate on
such Treasury Interest Determination Date plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof.
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified on
the face hereof as published on Telerate pages 56-57 or, if not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, the average auction rate on such Treasury
Interest Determination Date (expressed as a bond equivalent, on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that such rate is not available by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity (expressed
as a bond equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Interest Determination Date, of three leading primary U.S. government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Interest Determination Date will be the Treasury Rate
in effect immediately prior to such Treasury Interest Determination Date.
The Calculation Agent will calculate the interest rate on this Note in
accordance with the foregoing no later that the Calculation Date.
All percentages resulting form any calculations with respect to this
note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on this Note if an Event of Default
has occurred with respect hereto or upon the giving of a notice of redemption).
A Holder whose Note is registered in the name of a broker or nominee should
contact such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable
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payment date (the "Conversion Date") from the bank composite or multicontributor
pages of the Quoting Source for three (or two if three are not available) major
banks in The City of New York. The first three (or two) such banks selected by
the Currency Determination Agent which are offering quotes on the Quoting Source
will be used. If fewer than two such bid quotations are available at 11:00 A.M.,
New York City time, on the second Business Day next preceding the applicable
payment date, such payment will be based on the Market Exchange Rate as of the
second Business Day next preceding the applicable payment date. If the Market
Exchange Rate for such date is not then available, such payment will be made in
the Specified Currency. As used herein, the "Quoting Source" means Reuters
Monitor Foreign Exchange Service, or if the Currency Determination Agent
determines that such service is not available, Telerate Monitor Foreign Exchange
Service, or if the Currency Determination Agent determines that neither service
is available such comparable display or other comparable manner of obtaining
quotations as shall be agreed between the Company and the Currency Determination
Agent. All currency exchange costs associated with any payment in U.S. dollars
on this Note will be borne by the Holder by deductions from such payment. Any
currency determination agent (the "Currency Determination Agent") with respect
to this Note is specified on the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
SECTION 3. Redemption. This Note will be redeemable at the option of
the Company prior to the Stated Maturity only if an initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such initial
Redemption Date in whole or from time to time in part in increments of $1,000 or
the minimum denomination, if any, specified on the face hereof (provided that
nay remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Indenture. The Company may exercise such option by causing the Trustee to
mail a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof.
SECTION 4. Repayment. Upon the occurrence of certain change of control
events set forth in the Indenture, or if so specified on the face hereof, this
Note will be repayable, in whole or in part, prior to Stated Maturity, as the
case may be, on the terms set forth in the Indenture, or at the option of the
Holder
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on the Optional Repayment Date or Dates specified on the face hereof at the
Optional Repayment Price or Prices specified on the face hereof, plus accrued
and unpaid interest to but excluding the date of repayment. If this Note is
repayable in part pursuant to the preceding sentence, the principal amount of
this Note not being repaid must be $1,000 or an integral multiple of $1,000 in
excess thereof. In order for this Note to be repaid prior to State Maturity, the
Paying Agent must receive at least 30 but not more than 45 calendar days prior
to an Optional Repayment Date (i) this Note with the form below entitled "Option
to Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Note, the principal amount of this Note, the
principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note with
the form below entitled "Option to Elect Repayment" duly completed will be
received by the Paying Agent not later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter. If the procedure
described in clause (ii) of the preceding sentence is followed, this Note with
such form duly completed must be received by the Paying Agent by such fifth
Business Day. Exercise of the repayment option by the Holder of this Note will
be irrevocable, except that a holder who has tendered this Note for repayment
may revoke such tender for repayment by written notice to the Paying Agent
received by 5:00 P.M., New York City time, on the tenth calendar day prior to
the Optional Repayment Date. The repayment option may be exercised by the Holder
of this for less than the entire principal amount of this Note provided that the
principal amount of this Note remaining outstanding after such repayment is an
authorized denomination. Upon such partial repayment this Note will be cancelled
and a new Note or Notes for the remaining principal amount hereof will be issued
in the name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof,
while this Note is represented by one or more Book-Entry Notes registered in the
name of the Depositary or its nominee, the option for repayment may be exercised
by a participant that has an account with the Depositary, on behalf of the
beneficial owner of this Note, by delivering a written notice substantially
similar to the form below entitled "Option to Elect Repayment" to the Trustee at
its Corporate Trust Office (or such other address of which the Company will from
time to time notify the Holders) duly completed, at least 30 but not more than
60 calendar days prior to an Optional Repayment Date. A notice of election from
a participant on behalf of the beneficial owner of this Note to exercise the
option to have this Note repaid must be received by the Trustee by 5:00 P.M.,
New York City time, on the last day for giving such notice. In order to ensure
that a notice is received by the Trustee on a particular day, the beneficial
owner of this Note must so direct the applicable participant before such
participant's deadline for accepting instructions for that day. Different firms
may have different deadlines for accepting instructions from their customers.
Accordingly, the beneficial owner of this Note should consult the participant
through which such beneficial owner owns its interest herein for the deadline
for such participant. All notices shall be executed by a duly authorized officer
of such participant (with signatures guaranteed) and will be irrevocable. In
addition, the beneficial owner of this Note shall effect delivery at the time
such notice of election is given to the Depositary by causing the applicable
participant to transfer such beneficial owner's interest in this Note, on the
Depositary's records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face hereof,
the Spread and/or Spread Multiplier specified on the face hereof may be reset by
the Company on the Optional Interest Reset Date specified on the face hereof.
The Company may exercise such option by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to an Optional Interest
Reset Date. If the Company so notifies the Trustee of such exercise, not later
than 40 calendar days prior to such Optional Interest Reset Date, the Trustee
will send by telegram, telex, facsimile transmission or letter (first class,
postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Company has elected to resent the Spread and/or Spread
Multiplier, (ii) such new Spread and/or Spread Multiplier and (iii) the
provisions, if any, for redemption during the period from such Optional Interest
Reset Date to the next Optional Interest Reset Date or, if there is no such next
Optional Interest Reset Date, to the Stated Maturity of this Note (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to
an Optional Interest Reset Date, the Company may, at its option, revoke the
Spread and/or Spread Multiplier provided for in the
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<PAGE> 33
Reset Notice and establish a higher Spread and/or Spread Multiplier for the
Subsequent Interest Period commencing on such Optional Interest Reset Date by
causing the Trustee to send by telegram, telex, facsimile transmission or letter
(first class, postage prepaid) notice of such higher Spread and/or Spread
Multiplier to the Holder of this Note. Such notice will be irrevocable. All
Notes with respect to which the Spread and/or Spread Multiplier is reset on an
Optional Interest Reset Date to a higher Spread and/or Spread Multiplier will
bear such higher Spread and/or Spread Multiplier, whether or not tendered for
repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset
the interest rate of this Note, the Holder of this Note will have the option to
elect repayment of this Note, in whole but not in part, by the Company on such
Optional Interest Reset Date at a price equal to the principal amount hereof
plus accrued and unpaid interest to but excluding such Optional Interest Reset
Date. In order for this Note to be so repaid on an Optional Interest Reset Date,
the Holder must follow the procedures specified under Section 4 for optional
repayment, except that the period for delivery of this Note or notification to
the Trustee will be at least 25 but not more than 35 calendar days prior to such
Optional Interest Reset Date. If the Holder has tendered this Note for repayment
following receipt of a Reset Notice, the Holder may revoke such tender for
repayment by written notice to the Trustee received by 5:00 P.M., New York City
time, on the tenth calendar day prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for one or more periods of from one to five whole years, as specified on
the face hereof (each an "Extension Period"), up to but not beyond the date (the
"Final Maturity Date") specified on the face hereof. The Company may exercise
such option with respect to this Note by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to the Stated Maturity of
this Note in effect prior to the exercise of such option (the "Original Stated
Maturity Date"). If the Company so notifies the Trustee of such exercise, the
Trustee will send, not later than 40 calendar days prior to the Original Stated
Maturity Date, by telegram, telex, facsimile transmission or letter (first
class, postage prepaid) to the Holder of this Note a notice (the "Extension
Notice") relating to such Extension Period indicating (i) that the Company has
elected to extend the Stated Maturity of this Note, (ii) the new Stated
Maturity, (iii) the Spread and/or Spread Multiplier applicable to such Extension
Period and (iv) the provisions, if any, for redemption during such Extension
Period. Upon the Trustee's sending of the Extension Notice, the Stated Maturity
of this Note will be extended automatically and, except as modified by the
Extension Notice and as described in the next two paragraphs, this Note will
have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to
the Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the Spread and/or Spread Multiplier provided for in the Extension Notice
and establish a higher Spread and/or Spread Multiplier for the Extension Period
by causing the Trustee to send by telegram, telex, facsimile transmission or
letter (first class, postage prepaid) notice of such higher Spread and/or Spread
Multiplier to the Holder of this Note. Such notice will be irrevocable. All
Notes with respect to which the Stated Maturity is extended will bear such
higher Spread and/or Spread Multiplier for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note (or an
Extension Period, as applicable), the Holder will have the option to elect
repayment of this Note by the Company on the Original Stated Maturity Date (or
last day of such Extension Period) at a price equal to the principal amount
hereof, plus accrued and unpaid interest to such date. In order for this Note to
be so repaid on the Original Stated Maturity Date (or last day of such Extension
Period), the Holder of this Note must follow the procedures specified under
Section 4 for optional repayment, except that the period for delivery of this
Note or notification to the Trustee will be at least 25 but not more than 35
calendar days prior to the Original Stated Maturity Date (or last day of such
Extension Period). If the Holder has tendered this Note for repayment following
receipt of an Extension Notice the Holder may revoke such tender for repayment
by written notice to the Trustee received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to the Original Stated Maturity Date (or
last day of such Extension Period).
SECTION 7. Sinking Fund. This Note is not subject to a sinking fund
unless otherwise specified on the face hereof.
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SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note as
specified on the face hereof, the amount payable in the event the principal
amount hereof is declared to be due and payable immediately by reason of an
Event of Default or in the event of redemption or repayment hereof prior to the
Stated Maturity hereof, in lieu of the principal amount due at the Stated
Maturity hereof, will be the Amortized Face Amount of this Note as of the date
of declaration, redemption or repayment, as the case may be. The "Amortized Fact
Amount" of this Note will be the amount equal to (a) the principal amount of
this Note multiplied by the Issue Price specified on the face hereof plus (b)
the portion of the difference between the dollar amount determined pursuant to
the preceding clause (a) and the principal amount hereof that has accredit at
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or repayment but in no event will the Amortized Face
Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared to be due and payable will be the Amortized Face Amount of
this Note as of the date of such declaration as specified under Section 6.
SECTION 10. Modification or Waiver; Obligation of the Company Absolute.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected. The Indenture also
contains provisions permitting the Holder of specified percentages in principal
amount of the Outstanding Securities of each series, on behalf of the Holders of
all Securities of such series, to waive, with respect to the Securities of such
series, compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. For purposes
of determining whether Holders of the requisite principal amount of Notes
outstanding under the Indenture have made a demand or given a notice or waiver
or taken any other action, the outstanding principal amount of Original Issue
Discount Notes will be deemed to be the amount of the principal that would be
due and payable upon declaration of acceleration of the Stated Maturity thereof
as of the date of such determination. Any such consent or waiver by the Holder
of this Note will be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related Events of Default, upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes are issuable only in global or certificated registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein specified and to the limitations described below, if
applicable, Notes are exchangeable for Notes of this series of like aggregate
principal amount and like Stated Maturity and with like terms and conditions of
a different authorized denomination, as requested by the Holder surrendering the
same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar (which will initially be the Trustee at
its principal corporate trust office located in The City of New York) duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series with like terms and
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<PAGE> 35
conditions, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided in the Indenture, owners of
beneficial interests in this Book-Entry Note will not be entitled to receive
physical delivery of Notes in certificated registered form and will not be
considered the Holders thereof for any purpose under the Indenture.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and none of
the Company, the Trustee or any such agent will be affected by notice to the
contrary.
SECTION 15. Governing Law. The Indenture and the Notes will be governed
by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture will have the meanings assigned to them in the
Indenture, and all references in the Indenture to "Security" or "Securities"
will be deemed to include the Notes.
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OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount to this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof, plus accrued and unpaid interest to but excluding the date of repayment,
if this Note is to be repaid pursuant to Section 4 of this Note, or (ii) 100% of
the principal amount of this Note plus accrued and unpaid interest to but
excluding the Optional Interest Reset Date. If this Note is to be repaid
pursuant to Section 5 hereof, or to but excluding the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. If a portion of
this Note is not being repaid pursuant to clause (i) above, specify the
principal amount to be repaid and the denomination or denominations (which will
be $100,000 or an integral multiple of $1,000 in excess thereof) of the Note or
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any specification, one such Note will be issued for the
portion not being repaid):
Dated: ___________________________
Principal amount to be repaid if amount to be repaid is pursuant to clause (i)
above and is less than the entire principal amount of this Note (principal
amount remaining must be an authorized denomination)
$______________________________________________________
(which will be an integral multiple of $1,000)
Denomination or denominations of the Note or Notes to be issued for the portion
of this Note not being repaid pursuant to clause (i) above
______________________________________________________
______________________________________________________
______________________________________________________
Signature
Sign exactly as name appears on the front of this Note.
Indicate address where is to be sent, if repaid:
______________________________________________________
______________________________________________________
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
______________________________________________________
B-18
<PAGE> 37
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT Custodian
-------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
-------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
/ /
-------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________ attorney to transfer said Note on the
Books of the Company, with full power of substitution in the premises.
Dated:
--------------------- -----------------------------------
Signature
Sign exactly as name appears
on the front of this Note
[SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust
company or by a member of the
New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
B-19
<PAGE> 38
EXHIBIT C
PROVISIONS OF CURRENCY-INDEXED NOTES
General
"Currency Indexed Notes" shall be Notes, the principal amount payable
at Maturity and/or the interest rate of which is determined by a formula which
makes reference to the rate of exchange between one currency ("Currency I") and
another currency ("Currency II" together with Currency I, the "Selected
Currencies," both as specified in the applicable Note, neither of which need be
the Specified Currency of such Notes (the "Currency Indexed Notes"). Unless
otherwise specified in the applicable Note, Holders of Currency Indexed Notes
will be entitled to receive (i) an amount in respect of principal equal to the
principal amount of the Currency Indexed Notes plus an adjustment, which may be
negative or positive, based on the change in the relationship between Selected
Currencies or (ii) an amount of interest calculated at the stated rate of
interest on the Currency Indexed Notes plus an adjustment, which may be negative
or positive, based on the change in the relationship between the Selected
Currencies, in each case determined as described below under "Payment of
Principal and Interest." As specified in the Note, the exchange rate designated
as the base exchange rate (the "Base Exchange Rate") will be the initial rate at
which Currency I can be exchanged for Currency H and from which the change in
such exchange rate will be measured. Payment of Principal and Interest
Unless otherwise specified in the applicable Note, the payment of
principal at Maturity and interest on each Interest Payment Date (until the
payment thereof is paid or made available for payment) will be payable in the
Specified Currency in amounts calculated in the manner described below.
Unless otherwise specified in the applicable Note, principal at
Maturity, if indexed, will be payable in an amount equal to the principal amount
of the Currency Indexed Note, plus or minus an amount determined by reference to
the difference between the Base Exchange Rate specified in the applicable Note
and the rate at which Currency I can be exchanged for Currency II on the second
Business Day prior to the Maturity (the "Determination Date") of such Currency
Indexed Note, as determined by the determination agent specified in the
applicable Note (the "Determination Agent"). Unless otherwise specified in the
applicable Note, the interest payable on any Interest Payment Date, if indexed,
will be payable in an amount equal to the stated interest rate of the Currency
Indexed Note, plus or minus a rate adjustment determined by reference to the
difference between the Base Exchange Rate specified in the applicable Note and
the rate at which Currency I can be exchanged for Currency II on the second
Business Day prior to the Interest Payment Date (the "Indexed Interest
Determination Date") of such Currency Indexed Note, as determined by the
Determination Agent, applied to the average principal amount outstanding of such
Note for the period being measured. For the purpose of this section, such rate
of exchange on the Determination Date or the Indexed Interest Determination
Date, as the case may be, will be the average of quotations for settlement on
the Maturity Date or the relevant Interest Payment Date, as the case may be,
obtained by the Determination Agent from three Reference Dealers in The City of
New York at approximately 11:00 A.M., New York City time, on either the
Determination Date or the relevant Indexed Interest Determination Date, as the
case may be.
The formulas to be used by the Determination Agent to determine the
principal amount and/or the stated interest rate of a Currency Indexed Note
payable at Maturity or on any Interest Payment Date will be specified in the
applicable Note by reference to the appropriate formula and will be as follows:
C-1
<PAGE> 39
Principal
A. If principal is to increase when the Spot Rate exceeds the Base
Exchange Rate, and if principal is to decrease when the Spot Rate is less than
the Base Exchange Rate, the formula to determine the principal amount of a
Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x F x [Spot Rate - Base Exchange Rate])
---------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference
Dealer's quotation will be the rate at which such Reference Dealer will sell
Currency I in exchange for a single unit of Currency II.
B. If principal is to increase when the Base Exchange Rate exceeds the
Spot Rate, and if principal is to decrease when the Base Exchange Rate is less
than the Spot Rate, the formula to determine the principal amount of a Currency
Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount X F X [Base Exchange Rate - Spot Rate])
---------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference
Dealer's quotation will be the rate at which such Reference Dealer will purchase
Currency I in exchange for a single unit of Currency II. Interest
A. If interest is to increase when the Spot Rate exceeds the Base
Exchange Rate, and if interest is to decrease when the Spot Rate is less than
the Base Exchange Rate, the formula to determine the interest rate payable on
any Interest Payment Date on a Currency Indexed Note shall equal:
Stated Interest Rate + F X (Spot Rate - Base Exchange Rate)
--------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference
Dealer's quotation will be the rate at which such Reference Dealer will sell
Currency I in exchange for a single unit of Currency II.
B. If interest is to increase when the Base Exchange Rate exceeds the
Spot Rate, and if interest is to decrease when the Base Exchange Rate is less
than the Spot Rate, the formula to determine the interest rate payable on any
Interest Payment Date on a Currency Indexed Note shall equal:
Stated Interest Rate + F X (Base Exchange Rate - Spot Rate)
--------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference
Dealer's quotation will be the rate at which such Reference Dealer will purchase
Currency I in exchange for a single unit of Currency II.
In each of the above formulas "F" will be the leverage factor, if any,
used in such formula.
C-2
