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As filed with the Securities and Exchange Commission on June 12, 1996
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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M. A. HANNA COMPANY
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 34-0232435
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
SUITE 36-5000
200 PUBLIC SQUARE
CLEVELAND, OHIO 44114-2304
(216) 589-4000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
---------------
John S. Pyke, Jr., Esq.
Vice President, General Counsel and Secretary
M. A. Hanna Company
Suite 36-5000
200 Public Square
Cleveland, Ohio 44114-2304
(216) 589-4000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copies to:
Lyle G. Ganske, Esq. John W. White, Esq.
Christopher M. Kelly, Esq. Cravath, Swaine & Moore
Jones, Day, Reavis & Pogue 825 Eighth Avenue
901 Lakeside Avenue New York, NY 10019
Cleveland, Ohio 44114 (212) 474-1000
(216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of the Registration Statement
as determined in light of market conditions.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. /X/
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed Maximum
Title of Each Class of Amount to be Proposed Maximum Aggregate Amount of
Securities to be Registered Registered Offering Price(1) Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000(2)(3) 100% $300,000,000 $103,448.28
================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2) Or, if any Debt Securities are issued at original issue discount, such
greater principal amount as shall result in aggregate proceeds of
$300,000,000.
(3) Or, if any Debt Securities are issued with a principal amount
denominated in a foreign currency or composite currencies, such
principal amount as shall result in an aggregate initial public
offering price for all securities of $300,000,000.
</TABLE>
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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i
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE> 4
SUBJECT TO COMPLETION, DATED JUNE 12, 1996
PROSPECTUS [LOGO]
$300,000,000
M. A. HANNA COMPANY
DEBT SECURITIES
M.A. Hanna Company (the "Company") may offer and sell from time to time
unsecured debentures, notes or other evidences of indebtedness ("Debt
Securities"), with an initial offering price not to exceed $300,000,000 in the
aggregate (or the equivalent in foreign denominated currency or units based on
or related to currencies, including European Currency Units). All specific terms
of the offering and sale of the Debt Securities, including the specific
designations, rights and restrictions and whether the Debt Securities are senior
or subordinated, the currencies or composite currencies in which the Debt
Securities are denominated, the aggregate principal amount, the maturity, rate
and time of payment of interest, and any conversion, exchange, redemption or
sinking fund provisions, and initial public offering price, any material United
States federal income tax consequences, listing on any securities exchange, and
the agents, dealers or underwriters, if any, to be utilized in connection with
the sale of the Debt Securities, will be set forth in an accompanying Prospectus
Supplement (the "Prospectus Supplement"). The Debt Securities may be sold for
U.S. Dollars, foreign denominated currency or currency units; principal of and
any interest may likewise be payable in U.S. Dollars or foreign denominated
currency or currency units -- in each case, as the Company specifically
designates. The managing underwriters with respect to each series sold to or
through underwriters will be named in the Prospectus Supplement.
The Debt Securities may be offered directly, through dealers, through
underwriters or through agents designated from time to time as set forth in the
Prospectus Supplement. The names of any such dealers, underwriters or agents and
any applicable commissions or discounts and the net proceeds to the Company from
such sale will be set forth in the Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY OF THE DEBT SECURITIES OTHER THAN THE DEBT SECURITIES DESCRIBED
IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
The date of this Prospectus is ________ __, 1996.
<PAGE> 5
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE SUBSEQUENT
TO THE DATE HEREOF OR THEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR SOLICITATION
OF AN OFFER TO BUY THE DEBT SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS, IF ANY, FOR
SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICES OF SUCH DEBT SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and at the following regional offices of the
Commission: New York Regional Office, Seven World Trade Center, Suite 1300, New
York, New York 10048, and Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained by mail at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Company's
Common Stock is listed on the New York Stock Exchange, and such reports, proxy
statements and other information concerning the Company may also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, and the Chicago Stock Exchange, 440 South LaSalle Street, Chicago,
Illinois 60605.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933 (the "Securities Act"). This Prospectus and the
accompanying Prospectus Supplement omit certain of the information contained in
the Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Debt
Securities. Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission are incorporated by reference in this Prospectus: (i) the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as
amended; and (ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
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All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Debt
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of the filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein or in the
accompanying Prospectus Supplement modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company will provide, without charge, to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of any such person, a copy of any or all of the documents which
have been incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to M. A. Hanna Company, Suite
36-5000, 200 Public Square, Cleveland, Ohio 44114-2340, Attention: John S. Pyke,
Jr., Esq., Vice President, General Counsel and Secretary, telephone (216)
589-4000.
THE COMPANY
The Company is one of the largest independent custom compounders of
rubber in the world, a leading distributor of engineered plastic sheet, rod,
tube, film products, and polymer resins, a leading producer of custom formulated
color and additive concentrates in North America and Europe and a leading
compounder of plastics in North America in terms of pounds produced. The Company
conducts its operations through various business units located in North America,
Europe and Asia.
The Company's executive offices are located a Suite 36-5000, 200 Public
Square, Cleveland, Ohio 44114, and its telephone number is (216) 589-4000.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include repayment of indebtedness, additions to
working capital, capital expenditures and acquisitions. Further details relating
to the uses of the net proceeds of any such offering will be set forth in the
applicable Prospectus Supplement.
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table represents the Company's consolidated ratio of
earnings to fixed charges(1) for the periods shown:
<TABLE>
<CAPTION>
THREE MONTHS ENDED FISCAL YEAR ENDED
------------------------------ ---------------------------------------
March 31, March 31, December 31,
1996 1995 1995 1994 1993 1992 1991
------------ ------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
4.09 3.52 4.07 2.94 2.00 1.73 0.42
<FN>
1 For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income
taxes and fixed charges (excluding capitalized interest). "Fixed
charges" consist of (i) interest on indebtedness, whether expensed or
capitalized, and (ii) that portion of rental expense the Company
believes to be representative of interest.
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities. Accordingly, for
a description of the terms of a particular issue of Debt Securities, reference
must be made to both the Prospectus Supplement relating thereto and to the
following description.
The Debt Securities will be general obligations of the Company and may
be subordinated to "Senior Indebtedness" (as defined below) of the Company to
the extent set forth in the Prospectus Supplement relating thereto. See
"Description of Debt Securities -- Subordination" below. Debt Securities will be
issued under an indenture (the "Indenture") between the Company and NBD Bank
(the "Trustee"). A copy of the form of Indenture has been filed as an exhibit to
the Registration Statement filed with the Commission. The following discussion
of certain provisions of the Indenture is a summary only and does not purport to
be a complete description of the terms and provisions of the Indenture.
Accordingly, the following discussion is qualified in its entirety by reference
to the provisions of the Indenture, including the definition therein of terms
used below with their initial letters capitalized.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities of the series with respect to which such Prospectus
Supplement is being delivered:
(a) The title of Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under
the Indenture;
(c) The date or dates on which the principal and premium, if
any, with respect to the Debt Securities of the series are payable;
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(d) The rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest (if any) or
the method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable or the method by which such date will be
determined, the record dates for the determination of holders thereof
to whom such interest is payable (in the case of Registered
Securities), and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(e) The Place or Places of Payment, if any, in addition to or
instead of the corporate trust office of the Trustee where the
principal, premium, if any, and interest with respect to Debt
Securities of the series shall be payable;
(f) The price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
(g) The obligation, if any, of the Company to redeem,
purchase, or repay Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a holder
thereof and the price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series shall be redeemed, purchased, or repaid, in whole or in part,
pursuant to such obligations;
(h) The terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion
or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(i) If other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(j) If the amount of principal, premium, if any, or interest
with respect to the Debt Securities of the series may be determined
with reference to an index or pursuant to a formula, the manner in
which such amounts will be determined;
(k) If the principal amount payable at the stated maturity of
Debt Securities of the series will not be determinable as of any one or
more dates prior to such stated maturity, the amount that will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof that will be due and payable
upon any maturity other than the stated maturity or that will be deemed
to be outstanding as of any such date (or, in such case, the manner in
which such deemed principal amount is to be determined), and if
necessary, the manner of determining the equivalent thereof in United
States currency;
(l) Any changes or additions to the provisions of the
Indenture dealing with defeasance, including the addition of additional
covenants that may be subject to the Company's covenant defeasance
option;
(m) The coin or currency or currencies or units of two or more
currencies in which payment of the principal and premium, if any, and
interest with respect to Debt Securities of the series shall be
payable;
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(n) If other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration or provable in bankruptcy;
(o) The terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of the Indenture
as currently in effect;
(p) Any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the holders to declare the principal of and
interest on, such Debt Securities due and payable;
(q) If the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security, the terms and
conditions, if any, upon which such Global Security may be exchanged in
whole or in part for other individual Debt Securities in definitive
registered form and the Depositary for such Global Security;
(r) Any trustees, authenticating or paying agents, transfer
agents or registrars;
(s) The applicability of, and any addition to or change in the
covenants and definitions currently set forth in the Indenture or in
the terms relating to permitted consolidations, mergers, or sales of
assets, including conditioning any merger, conveyance, transfer or
lease permitted by the Indenture upon the satisfaction of an
Indebtedness coverage standard by the Company and Successor Company;
(t) The terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of the
Indenture as currently in effect;
(u) The subordination, if any, of the Debt Securities of the
series pursuant to the Indenture and any changes or additions to the
provisions of the Indenture relating to subordination;
(v) With regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(w) Any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the Indenture).
The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which such Prospectus Supplement relates,
including those applicable to (a) Debt Securities with respect to which payments
of principal, premium, or interest are determined with reference to an index or
formula (including changes in prices of particular securities, currencies, or
commodities), (b) Debt Securities with respect to which principal, premium, or
interest is payable in a foreign or composite currency, (c) Debt Securities that
are issued at a discount below their stated principal amount, bearing no
interest or interest at a rate that at the time of issuance is below market
rates ("Original Issue Discount Debt Securities"), and (d) variable rate Debt
Securities that are exchangeable for fixed rate Debt Securities.
Payments of interest on Debt Securities shall be made at the corporate
trust office of the Trustee or at the option of the Company by check mailed to
the registered holders thereof or, if so provided in the applicable Prospectus
Supplement, at the option of a holder by wire transfer to an account designated
by such holder.
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Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities may be transferred or exchanged at the office of the Trustee at which
its corporate trust business is principally administered in the United States or
at the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which its corporate agency business is
conducted, subject to the limitations provided in the Indenture, without the
payment of any service charge, other than any tax or governmental charge payable
in connection therewith.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
the form of one or more fully registered global securities (a "Global Security")
that will be deposited with a depositary (the "Depositary"), or with a nominee
for a Depositary identified in the Prospectus Supplement relating to such
series. In such case, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The amounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interest through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). So long as the
Depositary for a Global Security, or its nominee, is the registered owner of
such Global Security, such Depositary or such nominee, as the case may be, will
be considered the sole owner or Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in a Global Security will not be entitled
to have the Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any paying agent for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be
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<PAGE> 11
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
name", and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Global
Security is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within ninety days, the
Company will issue such Debt Securities in definitive form in exchange for such
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for the Global Security
or Securities representing such Debt Securities.
SUBORDINATION
Debt Securities may be subordinated ("Subordinated Debt Securities") to
senior debt to the extent set forth in the Prospectus Supplement relating
thereto.
Subordinated Debt Securities will be subordinate in right of payment,
to the extent and in the manner set forth in the Indenture and the Prospectus
Supplement relating to such Subordinated Debt Securities, to the prior payment
of all Indebtedness of the Company that is designated as "Senior Indebtedness"
(as defined in the Indenture) with respect to such Subordinated Debt Securities.
Senior Indebtedness, with respect to any series of Subordinated Debt Securities,
will consist of (a) any and all amounts payable under or with respect to the
Company's "Bank Indebtedness" (defined as the Credit Agreement, dated June 30,
1994, among the Company as Borrower, and the Banks party thereto, as amended,
modified, supplemented, refinanced or replaced at any time from time to time)
and (b) any other indebtedness of the Company that is designated in a resolution
of the Company's Board of Directors or the supplemental Indenture establishing
such series as Senior Indebtedness with respect to such series.
Upon any payment or distribution of assets of the Company to creditors
or upon a total or partial liquidation or dissolution of the Company or in a
bankruptcy, receivership, or similar proceeding relating to the Company or its
property, holders of Senior Indebtedness shall be entitled to receive payment in
full in cash of the Senior Indebtedness before holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal, premium, or
interest with respect to the Subordinated Debt Securities, and until the Senior
Indebtedness is paid in full, any distribution to which holders of Subordinated
Debt Securities would otherwise be entitled shall be made to the holders of
Senior Indebtedness (except that such holders may receive shares of stock and
any debt securities that are subordinated to Senior Indebtedness to at least the
same extent as the Subordinated Debt Securities).
The Company may not make any payments of principal, premium, or
interest with respect to Subordinated Debt Securities, make any deposit for the
purpose of defeasance of such Subordinated Debt Securities, or repurchase,
redeem, or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund, by the delivery of Subordinated Debt
Securities by the Company to the Trustee in satisfaction of the Company's
sinking fund obligation) any Subordinated Debt Securities if (a) any principal,
premium, if any, or interest with respect to Senior Indebtedness is not paid
within any applicable grace period (including at maturity) or (b) any other
default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms, unless, in either
case, the default has been cured or waived and such acceleration has been
rescinded, such Senior Indebtedness has been paid in full in cash, or the
Company and the Trustee receive written notice approving such payment from the
representatives of each issue of "Designated Senior Indebtedness" (which will
include the Bank Indebtedness and any other specified issue of Senior
Indebtedness). During the continuance of any default (other than a default
described in clause (a) or (b) above) with respect to any Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (the "Payment Blockage
Period") commencing on the receipt by the Company and the Trustee of written
notice of such default from the representative of any
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Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a "Blockage Notice"). The Payment Blockage Period may be
terminated before its expiration by written notice to the Trustee and the
Company from the person who gave the Blockage Notice, by repayment in full in
cash of the Senior Indebtedness with respect to which the Blockage Notice was
given, or because the default giving rise to the Payment Blockage Period is no
longer continuing. Unless the holders of such Senior Indebtedness shall have
accelerated the maturity thereof, the Company may resume payments on the
Subordinated Debt Securities after the expiration of the Payment Blockage
Period. Not more than one Blockage Notice may be given in any period of 360
consecutive days unless the first Blockage Notice within such 360-day period is
given by or on behalf of holders of Designated Senior Indebtedness other than
the Bank Indebtedness, in which case the representative of the Bank Indebtedness
may give another Blockage Notice within such period. In no event, however, may
the total number of days during which any Payment Blockage Period or Periods is
in effect exceed 179 days in the aggregate during any period of 360 consecutive
days. After all Senior Indebtedness is paid in full and until the Subordinated
Debt Securities are paid in full, holders of the Subordinated Debt Securities
shall be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness.
By reason of such subordination, in the event of insolvency, creditors
of the Company who are holders of Senior Indebtedness, as well as certain
general creditors of the Company, may recover more, ratably, than the holders of
the Subordinated Debt Securities.
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indenture as "Events of
Default" with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest on
any Debt Securities of that series as and when the same shall become due and
payable (whether or not, in the case of Subordinated Debt Securities, such
payment shall be prohibited by reason of the subordination provision described
above) and continuance of such default for a period of 30 days;
(b) Default in the payment of principal or premium with
respect to any Debt Securities of that series as and when the same become due
and payable, whether at maturity, upon redemption, by declaration, upon required
repurchase, or otherwise (whether or not, in the case of Subordinated Debt
Securities, such payment shall be prohibited by reason of the subordination
provision described above);
(c) Default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the same shall become
due and payable;
(d) Failure on the part of the Company to comply with the
provisions of the Indenture relating to consolidations, mergers and sales of
assets;
(e) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the Company in
the Debt Securities of that series, in any resolution of the Board of Directors
of the Company authorizing the issuance of that series of Debt Securities, in
the Indenture with respect to such series, or in any supplemental Indenture with
respect to such series (other than a covenant or agreement a default in the
performance of which is otherwise specifically dealt with) continuing for a
period of 60 days after the date on which written notice specifying such failure
and requiring the Company to remedy the same shall have been given to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Debt Securities of that series at
the time outstanding;
(f) Indebtedness of the Company or any Subsidiary of the
Company is not paid within any applicable grace period after final maturity or
is accelerated by the holders thereof because of a default, the total amount of
such indebtedness unpaid or accelerated exceeds $30 million or the United States
dollar
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equivalent thereof at the time, and such default remains uncured or such
acceleration is not rescinded for 10 days after the date on which written notice
specifying such failure and requiring the Company to remedy the same shall have
been given to the Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the Debt Securities
of that series at the time outstanding;
(g) The Company or any of its Restricted Subsidiaries shall
(1) voluntarily commence any proceeding or file any petition seeking relief
under the United States Bankruptcy Code or other federal or state bankruptcy,
insolvency, or similar law, (2) consent to the institution of, or fail to
controvert within the time and in the manner prescribed by law, any such
proceeding of the filing of any such petition, (3) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, or similar official
for the Company or any such Restricted Subsidiary or for a substantial part of
its property, (4) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (5) make a general assignment
for the benefit of creditors, (6) admit in writing its inability or fail
generally to pay its debts as they become due, (7) take corporate action for the
purpose of effecting any of the foregoing, or (8) take any comparable action
under any foreign laws relating to insolvency;
(h) The entry of an order or decree by a court having
competent jurisdiction for (1) relief with respect to the Company or any of its
Restricted Subsidiaries or a substantial part of any of their property under the
United States Bankruptcy Code or any other federal or state bankruptcy,
insolvency, or similar law, (2) the appointment of a receiver, trustee,
custodian, sequestrator, or similar official for the Company or any such
Restricted Subsidiary or for a substantial part of any of their property (except
any decree or order appointing such official of any Restricted Subsidiary
pursuant to a plan under which the assets and operations of such Restricted
Subsidiary are transferred to or combined with another Restricted Subsidiary or
Subsidiary of the Company or to the Company), or (3) the winding-up or
liquidation of the Company or any such Restricted Subsidiary (except any decree
or order approving or ordering the winding-up or liquidation of the affairs of a
Restricted Subsidiary pursuant to a plan under which the assets and operations
of such Restricted Subsidiary are transferred to or combined with another
Restricted Subsidiary or Subsidiaries of the Company or to the Company), and
such order or decree shall continue unstayed and in effect for 60 consecutive
days, or any similar relief is granted under any foreign laws and the order or
decree stays in effect for 60 consecutive days; or
(i) Any other Event of Default provided under the terms of the
Debt Securities of that series.
An Event of Default with respect to one series of Debt
Securities is not necessarily an Event of Default for another series.
If an Event of Default occurs and is continuing with respect
to any series of Debt Securities, unless the principal and interest with respect
to all the Debt Securities of such series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then outstanding may
declare the principal of (or, if Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in such series) and interest
on all the Debt Securities of such series due and payable immediately.
If an Event of Default occurs and is continuing, the Trustee
shall be entitled and empowered to institute any action or proceeding for the
collection of the sums so due and unpaid or to enforce the performance of any
provision of the Debt Securities of the affected series or the Indenture, to
prosecute any such action or proceeding to judgment or final decree, and to
enforce any such judgment or final decree against the Company or any other
obligor on the Debt Securities of such series. In addition, if there shall be
pending proceedings for the bankruptcy or reorganization of the Company or any
other obligor on the Debt Securities, or if a receiver, trustee, or similar
official shall have been appointed for its property, the Trustee shall be
entitled and empowered to file and prove a claim for the whole amount of
principal, premium and interest (or, in the case of Original Issue Discount Debt
Securities, such portion of the
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principal amount as may be specified in the terms of such series) owing and
unpaid with respect to the Debt Securities. No holder of any Debt Securities of
any series shall have any right to institute any action or proceeding upon or
under or with respect to the Indenture, for the appointment of a receiver or
trustee, or for any other remedy, unless (a) such holder previously shall have
given to the Trustee written notice of an Event of Default with respect to Debt
Securities of that series and of the continuance thereof, (b) the holders of not
less than 25% in aggregate principal amount of the outstanding Debt Securities
of that series shall have made written request to the Trustee to institute such
action or proceeding with respect to such Event of Default and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and (c) the
Trustee, for 60 days after its receipt of such notice, request, and offer of
indemnity shall have failed to institute such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to the provisions of the Indenture.
Prior to the acceleration of the maturity of the Debt
Securities of any series, the holders of a majority in aggregate principal
amount of the Debt Securities of that series at the time outstanding may, on
behalf of the holders of all Debt Securities of that series, waive any past
default or Event of Default and its consequences for that series, except (a) a
default in the payment of the principal, premium, or interest with respect to
such Debt Securities or (b) a default with respect to a provision of the
Indenture that cannot be amended without the consent of each holder affected
thereby. In case of any such waiver, such default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for all
purposes, and the Company, the Trustee and the holders of the Debt Securities of
that series shall be restored to their former positions and rights under the
Indenture.
The Trustee shall, within 90 days after the occurrence of a
default known to it with respect to a series of Debt Securities, give to the
holders of the Debt Securities of such series notice of all uncured defaults
with respect to such series known to it, unless such defaults shall have been
cured or waived before the giving of such notice; provided, however, that except
in the case of default in the payment of principal, premium, or interest with
respect to the Debt Securities of such series or in the making of any sinking
fund payment with respect to the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the holders of such
Debt Securities.
MODIFICATION OF THE INDENTURE
The Company and the Trustee may enter into supplemental
indentures without the consent of the holders of Debt Securities issued under
the Indenture for one or more of the following purposes:
(a) To evidence the succession of another person to
the Company pursuant to the provisions of the Indenture relating to
consolidations, mergers, and sales of assets and the assumption by such
successor of the covenants, agreements, and obligations of the Company in the
Indenture and in the Debt Securities;
(b) To surrender any right or power conferred upon
the Company by the Indenture, to add to the covenants of the Company such
further covenants, restrictions, conditions, or provisions for the protection of
the holders of all or any series of Debt Securities as the Board of Directors of
the Company shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance of a
default in any of such additional covenants, restrictions, conditions, or
provisions, a default or an Event of Default under the Indenture (provided,
however, that with respect to any such additional covenant, restriction,
condition, or provision, such supplemental indenture may provide for a period of
grace after default, which may be shorter or longer than that allowed in the
case of other defaults, may provide for an immediate enforcement upon such
default, may limit the remedies available to the Trustee upon such default, or
may limit the right of holders of a majority in aggregate principal amount of
any or all series of Debt Securities to waive such default);
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(c) To cure any ambiguity or to correct or supplement
any provision contained in the Indenture, in any supplemental indenture, or in
any Debt Securities that may be defective or inconsistent with any other
provision contained therein, to convey, transfer, assign, mortgage, or pledge
any property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under the Indenture as shall not adversely
affect the interests of any holders of Debt Securities of any series;
(d) To modify or amend the Indenture in such a manner
as to permit the qualification of the Indenture or any supplemental Indenture
under the Trust Indenture Act as then in effect;
(e) To add or change any of the provisions of the
Indenture to change or eliminate any restriction on the payment of principal or
premium with respect to Debt Securities so long as any such action does not
adversely affect the interest of the holders of Debt Securities in any material
respect or permit or facilitate the issuance of Debt Securities of any series in
uncertificated form;
(f) To comply with the provisions of the Indenture
relating to consolidations, mergers, and sales of assets;
(g) In the case of Subordinated Debt Securities, to
make any change in the provisions of the Indenture relating to subordination
that would limit or terminate the benefits available to any holder of Senior
Indebtedness under such provisions (but only if such holder of Senior
Indebtedness consents to such change);
(h) To add guarantees with respect to the Debt
Securities or to secure the Debt Securities;
(i) To make any change that does not adversely affect
the rights of any holder;
(j) To add to, change, or eliminate any of the
provisions of the Indenture with respect to one or more series of Debt
Securities, so long as any such addition, change, or elimination not otherwise
permitted under the Indenture shall (1) neither apply to any Debt Securities of
any series created prior to the execution of such supplemental Indenture and
entitled to the benefit of such provision nor modify the rights of the Holders
of any such Debt Security with respect to such provision or (2) become effective
only when there is no such Debt Security outstanding;
(k) To evidence and provide for the acceptance of
appointment by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the Indenture by more than one Trustee; and
(l) To establish the form or terms of Debt Securities
of any series, as described under "Description of Debt Securities -- General"
above.
With the consent of the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected
thereby, the Company and the Trustee may from time to time and at any time enter
into a supplemental Indenture for the purpose of adding any provisions to,
changing in any manner, or eliminating any of the provisions of the Indenture or
of any supplemental Indenture or modifying in any manner the rights of the
holder of the Debt Securities of such series; provided, however, that without
the consent of the holders of each Debt Security so affected, no such
supplemental Indenture shall (a) reduce the percentage in principal amount of
Debt Securities of any series whose holders must consent to an amendment, (b)
reduce the rate of or extend the time for payment of interest on any Debt
Security, (c) reduce the principal of or extend the stated maturity of any Debt
Security, (d) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed,
(e) make any Debt Security payable in a currency other than that stated in the
Debt Security, (f) in the case of any Subordinated Debt Security, make any
change in the
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provisions of the Indenture relating to subordination that adversely affects the
rights of any holder under such provisions, (g) release any security that may
have been granted with respect to the Debt Securities, or (h) make any change in
the provisions of the Indenture relating to waivers of defaults or amendments
that require unanimous consent.
CERTAIN COVENANTS
Limitation on Liens. The Company may not, and may not permit
any of its Subsidiaries to, directly or indirectly, create or permit to exist
any Lien on any Principal Property, whether owned on the date of issuance of the
Debt Securities or thereafter acquired, securing any obligation unless the
Company contemporaneously secures the Debt Securities equally and ratably with
(or prior to) such obligation. The preceding sentence will not require the
Company to secure the Debt Securities if the Lien consists of the following: (i)
Permitted Liens; or (ii) Liens securing Indebtedness if, after giving pro forma
effect to the Incurrence of such Indebtedness (and the receipt and application
of the proceeds thereof) or the securing of outstanding Indebtedness, the sum of
(without duplication) (A) all Indebtedness of the Company and its Subsidiaries
secured by Liens on Principal Property (other than Permitted Liens) and (B) all
Attributable Indebtedness in respect of Sale/Leaseback Transactions with respect
to any Principal Property, at the time of determination does not exceed 10% of
the total consolidated stockholders' equity of the Company as shown on the
audited consolidated balance sheet contained in the latest annual report to
stockholders of the Company.
Limitation on Sale/Leaseback Transactions. The Company may
not, and may not permit any of its Subsidiaries to, enter into any
Sale/Leaseback Transaction with respect to any Principal Property unless (i) the
Company or such Subsidiary would be entitled to create a Lien on such Principal
Property securing Indebtedness in an amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction without securing
the Debt Securities pursuant to the covenant described in "Limitation on Liens"
above or (ii) the Company, within six months from the effective date of such
Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement
(excluding retirements of Debt Securities or other Indebtedness ranking pari
passu with the Debt Securities as a result of conversions or pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment at
maturity) of Debt Securities or other Indebtedness ranking pari passu with the
Debt Securities an amount equal to the Attributable Indebtedness in respect of
such Sale/Leaseback Transaction.
Certain Definitions. The following definitions, among others,
are used in the Indenture. Many of the definitions of terms used in the
Indenture have been negotiated specifically for the purposes of inclusion in the
Indenture and may not be consistent with the manner in which such terms are
defined in other contexts. Prospective purchasers of Debt Securities are
encouraged to read each of the following definitions carefully and to consider
such definitions in the context in which they are used in the Indenture.
Capitalized terms used herein but not defined have the meanings assigned thereto
in the Indenture.
"Attributable Indebtedness" in respect of a Sale/ Leaseback
Transaction means, as of the time of determination, (i) if the obligation in
respect of such Sale/Leaseback Transaction is a Capitalized Lease Obligation,
the amount of such obligation determined in accordance with GAAP and included in
the financial statements of the lessee or (ii) if the obligation in respect of
such Sale/Leaseback Transaction is not a Capitalized Lease Obligation, the total
Net Amount of Rent required to be paid by the lessee under such lease during the
remaining term thereof (including any period for which the lease has been
extended), discounted from the respective due dates thereof to such
determination date at the rate per annum borne by the Debt Securities compounded
semi-annually.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment
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of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Currency Exchange Protection Agreement" means, in respect of
any Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Disqualified Stock" of a Person means Redeemable Stock of
such Person as to which the maturity, mandatory redemption, conversion or
exchange or redemption at the option of the holder thereof occurs, or may occur,
on or prior to the first anniversary of the Stated Maturity of the Debt
Securities.
"GAAP" means generally accepted accounting principles in the
United States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"Government Contract Lien" means any Lien required by any
contract, statute, regulation or order in order to permit the Company or any of
its Subsidiaries to perform any contract or subcontract made by it with or at
the request of the United States or any State thereof or any department, agency
or instrumentality of either or to secure partial, progress, advance or other
payments by the Company or any of its Subsidiaries to the United States or any
State thereof or any department agency or instrumentality of either pursuant to
the provisions of any contract, statute, regulation or order.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Protection Agreement, Currency
Exchange Protection Agreement or Commodity Price Protection Agreement or other
similar agreement.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed
money;
(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of
credit, banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the third business day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit;
(vi) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock (but excluding, in each case, any accrued dividends);
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(vii) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; PROVIDED, HOWEVER, that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness of such
other Persons; and
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; PROVIDED, HOWEVER, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Interest Rate Protection Agreement" means, in respect of any
Person, any interest rate swap agreement, interest rate option agreement,
interest rate cap agreement, interest rate collar agreement, interest rate floor
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Amount of Rent" as to any lease for any period means the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease that is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as payable under such lease subsequent to the first date upon which
it may be so terminated.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws, social security laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
cash or bonds to secure performance, surety or appeal bonds to which such Person
is a party or which are otherwise required of such Person, or deposits as
security for contested taxes or import duties or for the payment of rent or
other obligations of like nature, in each case incurred in the ordinary course
of business; (b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's, operators', factors
and mechanics liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings; (c) Liens for taxes, assessments and
other governmental charges or levies not yet delinquent or which are being
contested in good faith by appropriate proceedings; (d) survey exceptions,
encumbrances, easements or reservations of or with respect to, or rights of
others for or with respect to, licenses, rights-of-way, sewers, electric and
other utility lines and usages, telegraph and telephone lines, pipelines,
surface use, operation of equipment, permits, servitudes and other similar
matters, or zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which
do not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such Person;
(e) Liens existing on or provided for under the terms of agreements existing on
the Issue Date (including, without limitation, under the Credit Agreement); (f)
Liens on property at the time the Company or any of its Subsidiaries acquired
the property or the entity owning such property, including any acquisition by
means of a merger or
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consolidation with or into the Company; PROVIDED, HOWEVER, that any such Lien
may not extend to any other property owned by the Company or any of its
Subsidiaries, (g) Liens securing a Hedging Obligation so long as such Hedging
Obligation is of the type customarily entered into for the purpose of limiting
risk; (h) Purchase Money Liens; (i) Liens securing only Indebtedness of a
Subsidiary of the Company to the Company or one or more wholly owned
Subsidiaries of the Company; (j) Liens on any property to secure Indebtedness
Incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or Indebtedness issued or Guaranteed by the United States, any
state or any department, agency or instrumentality thereof; (k) Government
Contract Liens; (l) Liens securing Indebtedness of joint ventures in which the
Company or a Subsidiary has an interest to the extent such Liens are on property
or assets of, such joint ventures; (m) Liens resulting from the deposit of funds
or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness
of the Company or any of its Subsidiaries; (n) legal or equitable encumbrances
deemed to exist by reason of negative pledges or the existence of any litigation
or other legal proceeding and any related lis pendens filing (excluding any
attachment prior to judgment lien or attachment lien in aid of execution on a
judgment); (o) any attachment Lien being contested in good faith and by
proceedings promptly initiated and diligently conducted, unless the attachment
giving rise thereto will not, within sixty days after the entry thereof, have
been discharged or fully bonded or will not have been discharged within sixty
days after the termination of any such bond; (p) any judgment Lien, unless the
judgment it secures will not, within sixty days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or will not have
been discharged within sixty days after the expiration of any such stay; (q)
Liens to banks arising from the issuance of letters of credit issued by such
banks ("issuing banks") on the following: (i) any and all shipping documents,
warehouse receipts, policies or certificates of insurance and other document
accompanying or relative to drafts drawn under any credit, and any draft drawn
thereunder (whether or not such documents, goods or other property be released
to or upon the order of the Company or any Subsidiary under a security agreement
or trust or bailee receipt or otherwise), and the proceeds of each and all of
the foregoing; (ii) the balance of every deposit account, now or at the time
hereafter existing, of the Company or any Subsidiary with the issuing banks, and
any other claims of the Company or any Subsidiary against the issuing banks; and
all property claims and demands and all rights and interests therein of the
Company or any Subsidiary and all evidences thereof and all proceeds thereof
which have been or at any time will be delivered to or otherwise come into the
issuing bank's possession, custody or control, or into the possession, custody
or control of any bailee for the issuing bank or of any of its agents or
correspondents for the account of the issuing bank, for any purpose, whether or
not the express purpose of being used by the issuing bank as collateral security
or for the safekeeping or for any other or different purpose, the issuing bank
being deemed to have possession or control of all of such property actually in
transit to or from or set apart for the issuing bank, any bailee for the issuing
bank or any of its correspondents for other acting in its behalf, it being
understood that the receipt at any time by the issuing bank, or any of its
bailees, agents or correspondents, or other security, of whatever nature,
including cash, will not be deemed a waiver of any of the issuing bank's rights
or power hereunder; (iii) all property shipped under or pursuant to or in
connection with any credit or drafts drawn thereunder or in any way related
thereto, and all proceeds thereof; (iv) all additions to and substitutions for
any of the property enumerated above in this subsection; (r) rights of a common
owner of any interest in property held by such Person; (s) any defects,
irregularities or deficiencies in title to easements, rights-of-way or other
properties which do not in the aggregate materially adversely affect the value
of such properties or materially impair their use in the operation of the
business of such Person; and (t) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements), as a whole, or in part, of any
indebtedness secured by any Lien referred to in the foregoing clauses (e)
through (l); PROVIDED, HOWEVER, that (i) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
on such property) and (ii) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the indebtedness described
under clauses (e) through (l) at the time the original Lien became a Permitted
Lien under this Indenture and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement.
16
<PAGE> 20
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal Property" means any single manufacturing plant or
other similar facility or warehouse, owned or leased by the Company or any
Subsidiary, which is located within the United States and at which in excess of
5% of the Company's consolidated annual revenue is generated.
"Purchase Money Lien" means a Lien on property securing
Indebtedness Incurred by the Company or any of its Subsidiaries to provide funds
for all or any portion of the cost of acquiring, constructing, altering,
expanding, improving or repairing such property or assets used in connection
with such property.
"Redeemable Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness
(other than Preferred Stock) or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned on the Issue Date or thereafter acquired whereby the Company or
any of its Subsidiaries transfers such property to a Person and the Company or
any of its Subsidiaries leases it from such Person.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any
person, or convey, transfer, or lease all or substantially all of its assets,
unless the following conditions have been satisfied:
(a) Either (1) the Company shall be the continuing
person in the case of a merger or (2) the resulting, surviving, or transferee
person, if other than the Company (the "Successor Company"), shall be a
corporation organized and existing under the laws of the United States, any
State, or the District of Columbia and shall expressly assume all of the
obligations of the Company under the Debt Securities and the Indenture;
(b) Immediately after giving effect to such
transaction (and treating any Indebtedness that becomes an obligation of the
Successor Company or any subsidiary of the Company as a result of such
transaction as having been incurred by the Successor Company or such subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and
(c) The Company shall have delivered to the Trustee
an officers' certificate and an opinion of counsel, each stating that such
consolidation, merger, or transfer complies with the Indenture.
17
<PAGE> 21
SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE
The Indenture shall generally cease to be of any further
effect with respect to a series of Debt Securities if (a) the Company has
delivered to the Trustee for cancellation all Debt Securities of such series
(with certain limited exceptions) or (b) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount in the currency in
which the Debt Securities are denominated sufficient to pay at maturity or upon
redemption all such Debt Securities (and if, in either case, the Company shall
also pay or cause to be paid all other sums payable under the Indenture by the
Company).
In addition, the Company shall have a "legal defeasance
option" (pursuant to which it may terminate, with respect to the Debt Securities
of the particular series, all of its obligations under such Debt Securities and
the Indenture with respect to such Debt Securities) and "covenant defeasance
option" (pursuant to which it may terminate, with respect to the Debt Securities
of a particular series, its obligations with respect to such Debt Securities
under certain specified covenants contained in the Indenture). If the Company
exercises its legal defeasance option with respect to a series of Debt
Securities, payment of such Debt Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option with
respect to a series of Debt Securities, payment of such Debt Securities may not
be accelerated because of an Event of Default related to the specified
covenants.
The Company may exercise its legal defeasance option or its
covenant defeasance option with respect to the Debt Securities of a series only
if (a) the Company irrevocably deposits in trust with the Trustee cash or U.S.
Government Obligations (as defined in the Indenture) for the payment of
principal, premium, and interest with respect to such Debt Securities to
maturity or redemption, as the case may be, (b) the Company delivers to the
Trustee a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payment of principal and interest
when due and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay the principal, premium, and
interest when due with respect to all the Debt Securities of such series to
maturity or redemption, as the case may be, (c) 91 days pass after the deposit
is made and during the 91-day period no default described in clause (g) or (h)
under "Description of Debt Securities - Events of Default and Remedies" above
with respect to the Company occurs that is continuing at the end of such period,
(d) no Default has occurred and is continuing on the date of such deposit and
after giving effect thereto, (e) the deposit does not constitute a default under
any other agreement binding on the Company, and, in the case of Subordinated
Debt Securities, is not prohibited by the provisions of the Indenture relating
to subordination, (f) the Company delivers to the Trustee an opinion of counsel
to the effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment Company Act
of 1940, (g) the Company shall have delivered to the Trustee an opinion of
counsel addressing certain federal income tax matters relating to the
defeasance, and (h) the Company delivers to the Trustee an officer's certificate
and an opinion of counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as contemplated
by the Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government
Obligations deposited with it as described above and shall apply the deposited
cash and the proceeds from deposited U.S. Government Obligations to the payment
of principal, premium, and interest with respect to the Debt Securities of the
defeased series. In the case of Subordinated Debt Securities, the money and U.S.
Government Obligations so held in trust will not be subject to the subordination
provisions of the Indenture.
THE TRUSTEE
The Company may maintain banking and other commercial
relationships with the Trustee and its affiliates in the ordinary course of
business and the Trustee may own Debt Securities.
18
<PAGE> 22
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in the following
ways: (i) through agents; (ii) through underwriters; (iii) through dealers; and
(iv) directly to purchasers.
Offers to purchase the Debt Securities may be solicited by
agents designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Debt Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on the
best efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will
enter into an underwriting agreement with such underwriters at the time of sale
to them and the names of the underwriters and the terms of the transaction will
be set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales to the public of the Debt Securities in respect of
which this Prospectus is delivered.
If a dealer is utilized in the sale of the Debt Securities in
respect of which the Prospectus is delivered, the Company will sell such Debt
Securities to the dealer, as principal. The Dealer may then resell such Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
Agents, dealers and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters or dealers to solicit offers by certain
purchasers to purchase the Debt Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed upon
for the Company by Jones, Day, Reavis & Pogue, Cleveland, Ohio, and for any
underwriters or agents by Cravath, Swaine & Moore, New York, New York.
19
<PAGE> 23
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in accounting and auditing. The consolidated financial statements and
schedule of the Company for each of the two years in the period ended December
31, 1994, appearing in or incorporated by reference in the Company's Annual
Report (Form 10-K) for the year ended December 31, 1995, as amended, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements and schedule are incorporated herein by reference in
reliance upon such report given upon authority of such firm as experts in
accounting and auditing.
20
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated (except for the Commission
registration fee) fees and expenses payable by the Company in connection with
the sale and distribution of the securities registered hereby other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
Commission registration fee $ 103,448.28
Printing and engraving costs 50,000.00
Accounting fees and expenses 50,000.00
Trustee fees and expenses 20,000.00
Legal fees and expenses (not including Blue Sky) 40,000.00
Blue Sky fees and expenses 15,000.00
Rating Agencies' fees 150,000.00
Miscellaneous expenses 21,551.72
-------------
Total $ 450,000.00
=============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article FOURTEENTH of the Registrant's Restated Certificate of
Incorporation provides as follows:
FOURTEENTH: Each person who is or was or had agreed to become a
Director or officer of the Corporation, or each such person who is or was
serving or had agreed to serve at the request of the Board of Directors or an
officer of the Corporation as an employee or agent of the Corporation or as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the
Corporation to the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws as presently or hereafter in
effect. Without limiting the generality or effect of the foregoing, the
Corporation may enter into on or more agreements with any person which provide
for indemnification greater or different than that provided in this Article. No
amendment to or repeal of this Article FOURTEENTH shall apply to or have
hereunder for or with respect to claims asserted before or after such amendment
or repeal arising from acts or omissions occurring in whole or in part before
the effective date of such amendment or repeal.
The Company carries directors' and officers' liability insurance that
covers certain liabilities and expenses of the Company's directors and officers.
Reference is also made to the indemnification provisions in the form of
Underwriting Agreement filed as exhibit 1.1 to this Registration Statement and
to the undertaking "(c)" in Item 17 of this Registration Statement.
II-1
<PAGE> 25
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed herewith and made a part
hereof:
Exhibit Description of Exhibit
Number ----------------------
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture between the Company and NBD Bank, as
Trustee, relating to the Debt Securities.
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity
of the securities being offered.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.
25.1 Statement of Eligibility of NBD Bank under the Trust
Indenture Act of 1939 on Form T-1 relating to the
Indenture.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 26
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on June 12, 1996.
M. A. HANNA COMPANY
By: /s/ John S. Pyke, Jr.
------------------------------------------
John S. Pyke, Jr.
Vice President, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
* MARTIN D. WALKER Chairman of the Board, Chief Executive June 12, 1996
- ------------------------------------------------ Officer and Director
Martin D. Walker (Principal Executive Officer)
* DOUGLAS J. McGREGOR President, Chief Operating Officer and June 12, 1996
- ------------------------------------------------ Director
Douglas J. McGregor
* MICHAEL S. DUFFEY Vice President, Chief Financial Officer and June 12, 1996
- ------------------------------------------------ Treasurer
Michael S. Duffey (Principal Financial Officer)
* THOMAS E. LINDSEY Controller June 12, 1996
- ------------------------------------------------ (Principal Accounting Officer)
Thomas E. Lindsey
* B. CHARLES AMES Director June 12, 1996
- ------------------------------------------------
B. Charles Ames
* DR. CAROL A. CARTWRIGHT Director June 12, 1996
- ------------------------------------------------
Dr. Carol A. Cartwright
* WAYNE R. EMBRY Director June 12, 1996
- ------------------------------------------------
Wayne R. Embry
</TABLE>
II-4
<PAGE> 28
<TABLE>
<S> <C> <C>
* J. TREVOR EYTON Director June 12, 1996
- ------------------------------------------------
J. Trevor Eyton
* GEORGE D. KIRKHAM Director June 12, 1996
- ------------------------------------------------
George D. Kirkham
* MARVIN L. MANN Director June 12, 1996
- ------------------------------------------------
Marvin L. Mann
* RICHARD W. POGUE Director June 12, 1996
- ------------------------------------------------
Richard W. Pogue
<FN>
* The undersigned, by signing his name hereto, does hereby sign and execute this
Registration Statement pursuant to the Powers of Attorney executed by the
above-named officers and directors of the Registrant and which have been filed
with the Securities and Exchange Commission on behalf of such officers and
directors.
</TABLE>
/s/ John S. Pyke, Jr. June 12, 1996
- --------------------------------------------------
John S. Pyke, Jr., Attorney-in-Fact
II-5
<PAGE> 29
EXHIBIT INDEX
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture between the Company and NBD Bank, as
Trustee, relating to the Debt Securities.
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of
the securities being offered.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.
25.1 Statement of Eligibility of NBD Bank under the Trust Indenture
Act of 1939 on Form T-1 relating to the Indenture.
II-6
<PAGE> 1
Exhibit 1.1
M. A. Hanna Company
Underwriting Agreement
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
M. A. Hanna Company, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of , 1996, between the Company and , as trustee (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
<PAGE> 2
2
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company has complied with the requirements
for the use of Form S-3 under the Securities Act of 1933 (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the
file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration statement,
as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act
and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company has complied with the requirements
for the use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number of which
is set forth
<PAGE> 3
3
in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance
with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to
such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company
has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") with respect to the documents
incorporated by reference and the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the respective rules thereunder; on the
Effective Date, the
<PAGE> 4
4
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any 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; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus"
<PAGE> 5
5
shall mean the prospectus supplement relating to the Securities that is
first filed pursuant to Rule 424(b) after the Execution Time, together
with the Basic Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including incorporated
documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering" shall
mean an offering of securities which is intended to commence promptly
after the effective date of a registration statement, with the result
that,
<PAGE> 6
6
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be included
in such registration statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of securities pursuant to
Rule 415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
(d) To the Company's knowledge, the Company does not do
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities".
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in immediately available
funds. Delivery of the Underwriters' Securities shall be made at such location
as the Representatives shall reasonably designate at least one business day in
advance of the
<PAGE> 7
7
Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. AGREEMENTS. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review and given a
reasonable opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company will cause
the Final Prospectus, properly completed, and any supplement thereto to
be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the
<PAGE> 8
8
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate,
<PAGE> 9
9
will maintain such qualifications in effect so long as required for the
distribution of the Securities (provided that the Company shall not be
required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any state) and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company substantially similar to the Securities.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
12:00 Noon on the business day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
<PAGE> 10
10
(b) The Company shall have furnished to the Representatives
the opinion of Jones, Day, Reavis & Pogue, counsel for the Company,
dated the Closing Date, in substantially the form attached hereto in
Schedule IV and the opinion of the General Counsel of the Company, in
substantially the form attached hereto as Exhibit V.
In rendering such opinions, Jones, Day, Reavis & Pogue and the General
Counsel may rely (A) as to matters involving the application of laws of
any jurisdiction other than the States of Delaware and Ohio 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 Underwriters
and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the
President or any Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that to the best of their knowledge based upon reasonable
investigation:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects 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 material agreements and satisfied all the
<PAGE> 11
11
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 Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and any pro forma financial
statements included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by
the Company and its subsidiaries; their
performance of the procedures specified by the
American Institute of Certified Public Accountants
for the review of interim financial information as
described in SAS No. 71, Interim Financial
<PAGE> 12
12
Information; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders and directors (including committees) of the
Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or
common or preferred stock of the Company or decreases
in the consolidated net current assets or
stockholders' equity of the Company as compared with
the amounts shown on the most
<PAGE> 13
13
recent consolidated balance sheet included or
incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year in consolidated net
sales or income before income taxes and extraordinary
charge or in total or per share amounts of net income
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6 and 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated
in
<PAGE> 14
14
the Company's Quarterly Reports on Form 10-Q, incorporated in
the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Final Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
the acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, (i) except as provided in Schedule I hereto, at
the Execution Time, Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in form and
substance satisfactory to the Representatives, to the effect set forth above,
and (ii) Ernst & Young LLP shall have furnished to the Representatives a letter
or letters, dated as of the same dates, to the effect set forth in subsection
5(e)(i) above.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or
<PAGE> 15
15
(ii) any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and its
consolidated subsidiaries taken as a whole the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution 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 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.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide
<PAGE> 16
16
Plaza, 825 Eighth Avenue, New York, New York, on the Closing
Date.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of
the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied, because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by them in connection with the proposed purchase and sale of the
Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or other-
wise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
<PAGE> 17
17
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein and
PROVIDED, FURTHER, that the foregoing indemnity agreement with respect to any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter,
the directors, partners, officers, employees and agents of each Underwriter and
each person who controls such Underwriter within the meaning of either the Act
or the Exchange Act from whom the person asserting any such loss, claim, damage,
liability or action purchased Securities if a copy of the Final Prospectus (as
then amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of Securities to such person, and if the Final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or action. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page, under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final Prospectus or
the Final Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
<PAGE> 18
18
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel) which
in the case of either (i) or (ii) below shall be reasonably satisfactory to the
indemnifying party, and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with an actual conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and representation of both parties by the same
counsel would be, in the reasonable judgment of the indemnified party based upon
the advice of counsel, inadvisable due to actual or potential differing
interests between them, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party; PROVIDED,
HOWEVER, that in no event shall the indemnifying party be liable for legal fees
or expenses of more than one primary firm representing the indemnified
<PAGE> 19
19
parties, or more than one local counsel in each state or jurisdiction in which
an action in which indemnification is available has been brought. 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the Underwriters agree that
it would not be just and equitable if contri-
<PAGE> 20
20
bution were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting
<PAGE> 21
21
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Represenatatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(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 crisis the effect of which on financial markets is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancelation of this
Agreement.
11. NOTICES. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telecopied to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied to it at Suite 36-5000, 200 Public Square, Cleveland, Ohio
44114-2304, attention: Corporate Secretary.
12. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
<PAGE> 22
22
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
M. A. Hanna Company
By:
-----------------------------
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By:
---------------------
Vice President
<PAGE> 23
23
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
or
By:
---------------------
Vice President
For itself and the other
several Underwriters, if any,
named in Schedule II to
the foregoing Agreement.
<PAGE> 24
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Date referred to in Section 4(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from Price Waterhouse LLP
delivered pursuant to Section 5(e) at the Execution Time:
<PAGE> 25
SCHEDULE II
<TABLE>
<CAPTION>
Underwriters Principal Amount
- ------------ of Securities to
be Purchased
----------------
<S> <C>
$
----------------
Total.......................................... $
================
</TABLE>
<PAGE> 1
Exhibit 4.1
M. A. HANNA COMPANY
and
NBD Bank
as Trustee
--------------
Indenture
Dated as of ____ __, 1996
--------------
Debt Securities
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS OF THE COMPANY....................................................................................... 1
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined....................................................................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act............................................................................... 15
SECTION 1.03. Rules of Construction....................................................................... 15
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally............................................................................. 16
SECTION 2.02. Form of Trustee's Certificate of Authentication............................................. 17
SECTION 2.03. Principal Amount; Issuable in Series........................................................ 17
SECTION 2.04. Execution of Debt Securities................................................................ 20
SECTION 2.05. Authentication and Delivery of Debt Securities.............................................. 21
SECTION 2.06. Denomination of Debt Securities............................................................. 22
SECTION 2.07. Registration of Transfer and Exchange....................................................... 23
SECTION 2.08. Temporary Debt Securities................................................................... 24
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Debt Securities............................................................................. 25
SECTION 2.10. Cancellation of Surrendered Debt Securities................................................. 26
SECTION 2.11. Provisions of the Indenture and Debt
Securities for the Sole Benefit of the
Parties and the Holders..................................................................... 26
SECTION 2.12. Payment of Interest; Rights Preserved....................................................... 26
SECTION 2.13. Securities Denominated in Foreign Currencies................................................ 27
SECTION 2.14. Wire Transfers.............................................................................. 27
SECTION 2.15. Securities Issuable in the Form of a
Global Security............................................................................. 28
SECTION 2.16. Medium Term Securities...................................................................... 30
SECTION 2.17. Defaulted Interest.......................................................................... 31
SECTION 2.18. Judgments................................................................................... 32
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article.................................................................... 33
SECTION 3.02. Notice of Redemption; Selection of Debt
Securities.................................................................................. 33
SECTION 3.03. Payment of Debt Securities Called for Redemption............................................ 34
SECTION 3.04. Mandatory and Optional Sinking Funds........................................................ 35
SECTION 3.05. Redemption of Debt Securities for Sinking Fund.............................................. 36
</TABLE>
i
<PAGE> 3
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
<TABLE>
<S> <C> <C>
SECTION 4.01. Payment of Principal of, and Premium, If Any,
and Interest on, Debt Securities............................................................ 38
SECTION 4.02. Maintenance of Offices or Agencies for
Registration of Transfer, Exchange and
Payment of Debt Securities.................................................................. 38
SECTION 4.03. Appointment to Fill a Vacancy in the
Office of Trustee........................................................................... 39
SECTION 4.04. Duties of Paying Agents, etc................................................................ 39
SECTION 4.05. Statement by Officers as to Default......................................................... 40
SECTION 4.06. Further Instruments and Acts................................................................ 40
SECTION 4.07. Existence................................................................................... 40
SECTION 4.08. Maintenance of Properties................................................................... 41
SECTION 4.09. Payment of Taxes and Other Claims........................................................... 41
SECTION 4.10. Limitation on Liens......................................................................... 41
SECTION 4.11. Limitation on Sale/Leaseback Transactions................................................... 42
ARTICLE V
Holders' Lists and Reports by the Company and the Trustee
---------------------------------------------------------
SECTION 5.01. Company to Furnish Trustee Information
as to Names and Addresses of Holders;
Preservation of Information................................................................. 42
SECTION 5.02. Communications to Holders................................................................... 43
SECTION 5.03. Reports by Company.......................................................................... 43
SECTION 5.04. Reports by Trustee.......................................................................... 43
SECTION 5.05. Record Dates for Action by Holders.......................................................... 44
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default........................................................................... 44
SECTION 6.02. Collection of Indebtedness by Trustee, etc.................................................. 47
SECTION 6.03. Application of Moneys Collected by Trustee.................................................. 49
SECTION 6.04. Limitation on Suits by Holders.............................................................. 50
SECTION 6.05. Remedies Cumulative; Delay or Omission in
Exercise of Rights Not a Waiver of Default.................................................. 51
SECTION 6.06. Rights of Holders of Majority in Principal
Amount of Debt Securities to Direct
Trustee and to Waive Default................................................................ 51
SECTION 6.07. Trustee to Give Notice of Defaults
Known to It, but May Withhold Such Notice
In Certain Circumstances.................................................................... 52
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 6.08. Requirement of an Undertaking to Pay Costs
In Certain Suits Under the Indenture or
Against the Trustee......................................................................... 52
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities......................................................... 52
SECTION 7.02. Certain Rights of Trustee................................................................... 54
SECTION 7.03. Trustee Not Liable for Recitals in Indenture
or in Debt Securities....................................................................... 55
SECTION 7.04. Trustee, Paying Agent or Registrar May Own
Debt Securities............................................................................. 56
SECTION 7.05. Moneys Received by Trustee to be Held in Trust.............................................. 56
SECTION 7.06. Compensation and Reimbursement.............................................................. 56
SECTION 7.07. Right of Trustee to Rely on an Officers'
Certificate Where No Other Evidence
Specifically Prescribed..................................................................... 57
SECTION 7.08. Separate Trustee; Replacement of Trustee.................................................... 57
SECTION 7.09. Successor Trustee by Merger................................................................. 58
SECTION 7.10. Eligibility; Disqualification............................................................... 59
SECTION 7.11. Preferential Collection of Claims Against
Company...................................................................................... 59
SECTION 7.12. Compliance with Tax Laws.................................................................... 59
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders............................................................... 60
SECTION 8.02. Proof of Execution of Instruments and of
Holding of Debt Securities.................................................................. 60
SECTION 8.03. Who May Be Deemed Owner of Debt Securities.................................................. 60
SECTION 8.04. Instruments Executed by Holders Bind
Future Holders.............................................................................. 61
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May
Be Entered into Without Consent of Holders.................................................. 61
SECTION 9.02. Modification of Indenture with Consent of
Holders of Debt Securities.................................................................. 64
SECTION 9.03. Effect of Supplemental Indentures........................................................... 65
SECTION 9.04. Debt Securities May Bear Notation
of Changes by Supplemental Indentures....................................................... 66
SECTION 9.05. Payment for Consent......................................................................... 66
</TABLE>
iii
<PAGE> 5
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
<TABLE>
<S> <C> <C>
SECTION 10.01. Consolidations and Mergers of the Company................................................... 66
SECTION 10.02. Rights and Duties of Successor Corporation.................................................. 67
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
----------------------------------------
SECTION 11.01. Applicability of Article.................................................................... 67
SECTION 11.02. Satisfaction and Discharge of Indenture;
Defeasance.................................................................................. 67
SECTION 11.03. Conditions to Defeasance.................................................................... 69
SECTION 11.04. Application of Trust Money.................................................................. 70
SECTION 11.05. Repayment to Company........................................................................ 70
SECTION 11.06. Indemnity for U.S. Government Obligations................................................... 70
SECTION 11.07. Reinstatement............................................................................... 71
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article; Agreement
to Subordinate.................................................................................71
SECTION 12.02. Liquidation, Dissolution, Bankruptcy...........................................................71
SECTION 12.03. Default on Senior Indebtedness.................................................................72
SECTION 12.04. Acceleration of Payment of Debt Securities.....................................................73
SECTION 12.05. When Distribution Must Be Paid Over............................................................73
SECTION 12.06. Subrogation....................................................................................73
SECTION 12.07. Relative Rights................................................................................73
SECTION 12.08. Subordination May Not Be Impaired by Company...................................................74
SECTION 12.09. Rights of Trustee and Paying Agent.............................................................74
SECTION 12.10. Distribution or Notice to Representative.......................................................74
SECTION 12.11. Article XII Not to Prevent Defaults or
Limit Right To Accelerate......................................................................74
SECTION 12.12. Trust Moneys Not Subordinated..................................................................74
SECTION 12.13. Trustee Entitled to Rely.......................................................................75
SECTION 12.14. Trustee to Effectuate Subordination............................................................75
SECTION 12.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness............................................................................75
SECTION 12.16. Reliance by Holders of Senior
Indebtedness on Subordination Provisions.......................................................76
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company
Bound by Indenture.......................................................................... 76
SECTION 13.02. Acts of Board, Committee or Officer
of Successor Company Valid.................................................................. 76
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 13.03. Required Notices or Demands................................................................. 76
SECTION 13.04. Indenture and Debt Securities to Be
Construed in Accordance with the Laws of the State of New York.............................. 77
SECTION 13.05. Officers' Certificate and Opinion of
Counsel to Be Furnished upon Application or Demand by the Company........................... 77
SECTION 13.06. Payments Due on Legal Holidays.............................................................. 78
SECTION 13.07. Provisions Required by Trust Indenture
Act to Control.............................................................................. 78
SECTION 13.08. Computation of Interest on Debt Securities.................................................. 78
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar................................................ 78
SECTION 13.10. No Recourse Against Others.................................................................. 78
SECTION 13.11. Severability................................................................................ 78
SECTION 13.12. Effect of Headings.......................................................................... 79
SECTION 13.13. Indenture May Be Executed in Counterparts................................................... 79
SIGNATURES.................................................................................................... 79
</TABLE>
v
<PAGE> 7
M. A. HANNA COMPANY
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
<TABLE>
<CAPTION>
Indenture
TIA Section SECTION
----------- -------
<S> <C>
310(a)(1)................................................................................................... 7.10
(a)(2)................................................................................................... 7.10
(a)(3)................................................................................................... 7.10
(a)(5)................................................................................................... 7.10
(b)...................................................................................................... 7.10
(c)...................................................................................................... N.A.**
311(a)...................................................................................................... 7.11
(b)...................................................................................................... 7.11
(c)...................................................................................................... N.A.
312(a)...................................................................................................... 5.01
(b)...................................................................................................... 5.02
(c)...................................................................................................... 5.02
313(a)...................................................................................................... 5.04
(b)(1)................................................................................................... 5.04
(b)(2)................................................................................................... 5.04
(c)...................................................................................................... 12.03
(d)...................................................................................................... 5.04
314(a)(1)................................................................................................... 5.03(a)
(a)(2)................................................................................................... 5.03(b)
(a)(3)................................................................................................... 5.03(a)&(b)
& 12.03
(a)(4)................................................................................................... 4.05
(b)...................................................................................................... N.A.
(c)(1)................................................................................................... 12.05
(c)(2)................................................................................................... 12.05
(c)(3)................................................................................................... N.A.
(d)...................................................................................................... N.A.
(e)...................................................................................................... 12.05
(f)...................................................................................................... 4.06
315(a)...................................................................................................... 7.01(a)
(b)...................................................................................................... 6.07 & 12.03
(c)...................................................................................................... 7.01
(d)...................................................................................................... 7.01
(e)...................................................................................................... 6.08
</TABLE>
vi
<PAGE> 8
<TABLE>
<S> <C>
316(a)(last sentence)........................................................................................ 1.01
(a)(1)(A)................................................................................................. 6.06
(a)(1)(B)................................................................................................. 6.06
(a)(2).................................................................................................... 9.01(d)
(b)....................................................................................................... 6.04
(c)....................................................................................................... 5.05
317(a)(1).................................................................................................... 6.02
(a)(2).................................................................................................... 6.02
(b)....................................................................................................... 4.04
318(a)...................................................................................................... 12.07
<FN>
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
</TABLE>
vii
<PAGE> 9
INDENTURE dated as of _______, 1996, between M. A. HANNA
COMPANY, a corporation duly organized and existing under the laws of the State
of Delaware (hereinafter sometimes called the "Company"), and NBD Bank, a
Michigan banking corporation (hereinafter sometimes 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 debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
to the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which
the Debt Securities are authenticated, issued and delivered, and in
consideration of the premises, and of the purchase and acceptance of the Debt
Securities by the holders thereof, the Company and the Trustee covenant and
agree with each other, for the benefit of the respective Holders from time to
time of the Debt Securities or any series thereof, as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. CERTAIN TERMS DEFINED. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the Securities Act as in force as of the date of
original execution of this Indenture.
"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 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
1
<PAGE> 10
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper in an official
language of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar week, and
of general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any business day in such city.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale/ Leaseback
Transaction means, as of the time of determination, (i) if the obligation in
respect of such Sale/Leaseback Transaction is a Capitalized Lease Obligation,
the amount of such obligation determined in accordance with GAAP and included in
the financial statements of the lessee or (ii) if the obligation in respect of
such Sale/Leaseback Transaction is not a Capitalized Lease Obligation, the total
Net Amount of Rent required to be paid by the lessee under such lease during the
remaining term thereof (including any period for which the lease has been
extended), discounted from the respective due dates thereof to such
determination date at the rate per annum borne by the Debt Securities compounded
semi-annually.
"BANK INDEBTEDNESS" means any and all amounts payable under or
in respect of (i) the Credit Agreement, as supplemented, amended, modified,
refinanced or replaced at any time from time to time, and (ii) any lines of
credit and letters of credit of the Company, in each case, including principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.
"BANKS" has the meaning specified in the Credit
Agreement.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Company or any duly authorized committee or subcommittee of such Board,
except as the context may otherwise require.
"BUSINESS DAY" means, when used with respect to any Place of
Payment specified pursuant to Section 2.03, any day that is not a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies in such Place of Payment are authorized or obligated by law to close,
except as otherwise specified pursuant to Section 2.03.
2
<PAGE> 11
"CAPITALIZED LEASE OBLIGATION" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"CAPITAL STOCK" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (including partnership interests) in (however
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity.
"COMMODITY PRICE PROTECTION AGREEMENT" means, in respect of
any Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"COMMON STOCK" means the common shares, $1.00 par value per
share, of the Company, which stock is currently listed on the New York Stock
Exchange and the Chicago Stock Exchange.
"COMPANY" means M. A. Hanna Company, a Delaware
corporation, and, subject to the provisions of Article X, shall
also include its successors and assigns.
"COMPANY ORDER" means a written order of the Company, signed
by its Chairman of the Board, President or any Vice President and by its
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" or other similar term
means the office of the Trustee at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered in the United
States of America, except that with respect to the presentation of Debt
Securities for payment or for registration of transfer and exchange, such term
shall also mean the office of the Trustee or the Trustee's agent in the Borough
of Manhattan, the City and State of New York, at which at any particular time
its corporate agency business shall be conducted.
"CREDIT AGREEMENT" means the Credit Agreement dated as of June
30, 1994, among the Company and certain of its subsidiaries, each as a Borrower,
and the Banks party thereto, as supplemented, amended, modified, refinanced or
replaced at any time from time to time.
"CURRENCY" means Dollars or Foreign Currency.
3
<PAGE> 12
"CURRENCY EXCHANGE PROTECTION AGREEMENT" means, in respect of
any Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"DEBT SECURITY" or "DEBT SECURITIES" has the meaning stated in
the first recital of this Indenture and more particularly means any debt
security or debt securities, as the case may be of any series authenticated and
delivered under this Indenture.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEPOSITARY" means, unless otherwise specified by the Company
pursuant to either Section 2.03 or 2.15, with respect to registered Debt
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Exchange Act
or other applicable statute or regulations.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness of the Company.
"DISQUALIFIED STOCK" of a Person means Redeemable Stock of
such Person as to which the maturity, mandatory redemption, conversion or
exchange or redemption at the option of the holder thereof occurs, or may occur,
on or prior to the first anniversary of the Stated Maturity of the Debt
Securities.
"DOLLAR" or "$" means such currency of the United States as at
the time of payment is legal tender for the payment of public and private debts.
"DOLLAR EQUIVALENT" means, with respect to any monetary amount
in a Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by Citibank, N.A. (unless another
comparable financial institution is designated by the Company) in New York, New
York at approximately 11:00 a.m. (New York time) on the date two business days
prior to such determination.
"EUROPEAN CURRENCY UNITS" has the meaning assigned to it from
time to time by the Council of the European Communities.
"EUROPEAN COMMUNITIES" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
4
<PAGE> 13
"EVENT OF DEFAULT" has the meaning specified in Section
6.01.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"FLOATING RATE SECURITY" means a Debt Security that provides
for the payment of interest at a variable rate determined periodically by
reference to an interest rate index specified pursuant to Section 2.03.
"FOREIGN CURRENCY" means a currency issued by the government
of any country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group of
countries.
"GAAP" means generally accepted accounting principles in the
United States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"GLOBAL SECURITY" means with respect to any series of Debt
Securities issued hereunder, a Debt Security which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"GOVERNMENT CONTRACT LIEN" means any Lien required by any
contract, statute, regulation or order in order to permit the Company or any of
its Subsidiaries to perform any contract or subcontract made by it with or at
the request of the United States or any State thereof or any department, agency
or instrumentality of either or to secure partial, progress, advance or other
payments by the Company or any of its Subsidiaries to the United States or any
State thereof or any department agency or instrumentality of either pursuant to
the provisions of any contract, statute, regulation or order.
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<PAGE> 14
"GUARANTEE" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person or (ii) entered into for purposes of assuring in
any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); PROVIDED, HOWEVER, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"HEDGING OBLIGATIONS" of any Person means the obligations of
such Person pursuant to any Interest Rate Protection Agreement, Currency
Exchange Protection Agreement or Commodity Price Protection Agreement or other
similar agreement.
"HOLDER," "HOLDER OF DEBT SECURITIES" or other similar terms
means, with respect to a Registered Security, the Registered Holder.
"INCUR" means issue, assume, Guarantee, incur or otherwise
become liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
"INDEBTEDNESS" means, with respect to any Person on any
date of determination (without duplication),
(i) the principal of Indebtedness of such Person for
borrowed money;
(ii) the principal of obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services (except
Trade Payables);
(v) all obligations of such Person in respect of letters of
credit, banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) above) entered
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<PAGE> 15
into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third business
day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit;
(vi) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock (but excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; PROVIDED, HOWEVER, that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness of such
other Persons; and
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; PROVIDED, HOWEVER, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"INDENTURE" means this instrument as originally executed, or,
if amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"INTEREST RATE PROTECTION AGREEMENT" means, in respect of any
Person, any interest rate swap agreement, interest rate option agreement,
interest rate cap agreement, interest rate collar agreement, interest rate floor
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates.
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"LIEN" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"NET AMOUNT OF RENT" as to any lease for any period means the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease that is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as payable under such lease subsequent to the first date upon which
it may be so terminated.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the President or any Vice President and by the Treasurer,
chief accounting officer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 13.05, if applicable.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel for the Company (which counsel may be an employee of the Company),
or outside counsel for the Company. Each such opinion shall include the
statements provided for in Section 13.05, if applicable.
"ORIGINAL ISSUE DISCOUNT DEBT SECURITY" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration or acceleration of the maturity thereof
pursuant to Section 6.01.
"OUTSTANDING" when used with respect to any series of Debt
Securities, means, as of the date of determination, all Debt Securities of that
series theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled
by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities of that series 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 Debt
Securities; PROVIDED, that, if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
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(iii) Debt Securities of that series which have been paid
pursuant to Section 2.09 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
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 Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
"PARI PASSU", as applied to the ranking of any Indebtedness of
a Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
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subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"PERMITTED LIENS" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws, social security laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
cash or bonds to secure performance, surety or appeal bonds to which such Person
is a party or which are otherwise required of such Person, or deposits as
security for contested taxes or import duties or for the payment of rent or
other obligations of like nature, in each case incurred in the ordinary course
of business; (b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's, operators', factors
and mechanics liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings; (c) Liens for taxes, assessments and
other governmental charges or levies not yet delinquent or which are being
contested in good faith by appropriate proceedings; (d) survey exceptions,
encumbrances, easements or reservations of or with respect to, or rights of
others for or with respect to, licenses, rights-of-way, sewers, electric and
other utility lines and usages, telegraph and telephone lines, pipelines,
surface use, operation of equipment, permits, servitudes and other similar
matters, or zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which
do not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such Person;
(e) Liens existing on or provided for under the terms of agreements existing on
the Issue Date (including, without limitation, under the Credit Agreement); (f)
Liens on property at the time the Company or any of its Subsidiaries acquired
the property or the entity owning such property, including any acquisition by
means of a merger or consolidation with or into the Company; PROVIDED, HOWEVER,
that any such Lien may not extend to any other property owned by the Company or
any of its Subsidiaries, (g) Liens securing a Hedging Obligation so long as such
Hedging Obligation is of the type customarily entered into for the purpose of
limiting risk; (h) Purchase Money Liens; (i) Liens securing only Indebtedness of
a Subsidiary of the Company to the Company or one or more wholly owned
Subsidiaries of the Company; (j) Liens on any property to secure Indebtedness
Incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or Indebtedness issued or Guaranteed by the United States, any
state or any department, agency or instrumentality thereof; (k) Government
Contract Liens; (l) Liens securing Indebtedness of joint ventures in which the
Company or a Subsidiary has an interest to the extent such Liens
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are on property or assets of, such joint ventures; (m) Liens resulting from the
deposit of funds or evidences of Indebtedness in trust for the purpose of
defeasing Indebtedness of the Company or any of its Subsidiaries; (n) legal or
equitable encumbrances deemed to exist by reason of negative pledges or the
existence of any litigation or other legal proceeding and any related lis
pendens filing (excluding any attachment prior to judgment lien or attachment
lien in aid of execution on a judgment); (o) any attachment Lien being contested
in good faith and by proceedings promptly initiated and diligently conducted,
unless the attachment giving rise thereto will not, within sixty days after the
entry thereof, have been discharged or fully bonded or will not have been
discharged within sixty days after the termination of any such bond; (p) any
judgment Lien, unless the judgment it secures will not, within sixty days after
the entry thereof, have been discharged or execution thereof stayed pending
appeal, or will not have been discharged within sixty days after the expiration
of any such stay; (q) Liens to banks arising from the issuance of letters of
credit issued by such banks ("issuing banks") on the following: (i) any and all
shipping documents, warehouse receipts, policies or certificates of insurance
and other document accompanying or relative to drafts drawn under any credit,
and any draft drawn thereunder (whether or not such documents, goods or other
property be released to or upon the order of the Company or any Subsidiary under
a security agreement or trust or bailee receipt or otherwise), and the proceeds
of each and all of the foregoing; (ii) the balance of every deposit account, now
or at the time hereafter existing, of the Company or any Subsidiary with the
issuing banks, and any other claims of the Company or any Subsidiary against the
issuing banks; and all property claims and demands and all rights and interests
therein of the Company or any Subsidiary and all evidences thereof and all
proceeds thereof which have been or at any time will be delivered to or
otherwise come into the issuing bank's possession, custody or control, or into
the possession, custody or control of any bailee for the issuing bank or of any
of its agents or correspondents for the account of the issuing bank, for any
purpose, whether or not the express purpose of being used by the issuing bank as
collateral security or for the safekeeping or for any other or different
purpose, the issuing bank being deemed to have possession or control of all of
such property actually in transit to or from or set apart for the issuing bank,
any bailee for the issuing bank or any of its correspondents for other acting in
its behalf, it being understood that the receipt at any time by the issuing
bank, or any of its bailees, agents or correspondents, or other security, of
whatever nature, including cash, will not be deemed a waiver of any of the
issuing bank's rights or power hereunder; (iii) all property shipped under or
pursuant to or in connection with any credit or drafts drawn thereunder or in
any way related thereto, and all proceeds thereof; (iv) all additions to and
substitutions for any of the property enumerated above in this subsection; (r)
rights of a common owner of any interest in property held by such Person; (s)
any defects, irregularities or deficiencies in title to easements, rights-of-way
or other properties which do not
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in the aggregate materially adversely affect the value of such properties or
materially impair their use in the operation of the business of such Person; and
(t) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals or
replacements), as a whole, or in part, of any indebtedness secured by any Lien
referred to in the foregoing clauses (e) through (l); PROVIDED, HOWEVER, that
(i) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property) and (ii) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the indebtedness described under clauses (e) through (l) at
the time the original Lien became a Permitted Lien under this Indenture and (B)
an amount necessary to pay any fees and expenses, including premiums, related to
such refinancing, refunding, extension, renewal or replacement.
"PERSON" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PLACE OF PAYMENT" means, when used with respect to the Debt
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are payable
as specified pursuant to Section 2.03.
"PREFERRED STOCK" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PRINCIPAL PROPERTY" means any single manufacturing plant or
other similar facility or warehouse, owned or leased by the Company or any
Subsidiary, which is located within the United States and at which in excess of
5% of the Company's consolidated annual revenue is generated.
"PURCHASE MONEY LIEN" means a Lien on property securing
Indebtedness Incurred by the Company or any of its Subsidiaries to provide funds
for all or any portion of the cost of acquiring, constructing, altering,
expanding, improving or repairing such property or assets used in connection
with such property.
"REDEEMABLE STOCK" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness
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(other than Preferred Stock) or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part.
"REGISTERED HOLDER" means the Person in whose name a
Registered Security is registered in the Debt Security Register (as defined in
Section 2.07(a)).
"REGISTERED SECURITY" means any Debt Security registered as to
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"REGISTRAR" has the meaning set forth in Section 2.07(a).
"REPRESENTATIVE" means the trustee, agent or representative
(if any) for an issue of Indebtedness.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means any officer within the Trustee, including any Vice President, any Second
Vice President, any trust officer or any other officer of the Trustee performing
functions similar to those performed by the persons who at the time shall be
such officers, and any other officer of the Trustee to whom corporate trust
matters are referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED SUBSIDIARY" means a Subsidiary of the Company
which shall at the time, directly or indirectly, through one or more
Subsidiaries or in combination with one or more Subsidiaries or the Company,
owns or leases a Principal Property.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to
property owned on the Issue Date or thereafter acquired whereby the Company or
any of its Subsidiaries transfers such property to a Person and the Company or
any of its Subsidiaries leases it from such Person.
"SECURED INDEBTEDNESS" means any Indebtedness of the Company
secured by a Lien.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means, as to any series of Debt
Securities subordinated pursuant to the provisions of Article XII, the
Indebtedness of the Company identified as Senior Indebtedness in the resolution
of the Board of Directors and accompanying Officers' Certificate or supplemental
Indenture setting forth the terms, including as to subordination, of such
series.
"STATED MATURITY" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable,
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including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond the control of the
issuer unless such contingency has occurred).
"SUBSIDIARY" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"TEMPORARY CASH INVESTMENTS" means any of the following: (i)
investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States, any State thereof or any foreign country
recognized by the United States having capital, surplus and undivided profits
aggregating in excess of $500,000,000 (or the Dollar Equivalent thereof) and
whose long-term debt is rated "A" or higher according to Moody's Investors
Service, Inc. (or such similar equivalent rating by at least one "nationally
recognized statistical rating organization" (as defined in Rule 436 under the
Securities Act)), (iii) repurchase obligations with a term of not more than 7
days for underlying securities of the types described in clause (i) above
entered into with a bank meeting the qualifications described in clause (ii)
above and (iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
or any foreign country recognized by the United States with a rating at the time
as of which any investment therein is made of "P-1" (or higher) according to
Moody's Investors Service, Inc. or "A-1" (or higher) according to Standard and
Poor's Corporation.
"TRADE PAYABLES" means, with respect to any Person, any
accounts payable or any Indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business of such Person in connection with the acquisition of goods or services.
"TRUSTEE" initially means NBD Bank and any other Person or
Persons appointed as such from time to time pursuant to Section 7.08, and,
subject to the provisions of Article VII, includes its or their successors and
assigns. If at any time there is more than one such Person, "Trustee" as used
with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.
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"TRUST INDENTURE ACT" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939 as in force at the date of this
indenture as originally executed and, to the extent required by law, as amended.
"UNITED STATES" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (x)
direct obligations of the United States for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof.
"YIELD TO MATURITY" means the yield to maturity calculated at
the time of issuance of a series of Debt Securities, or, if applicable, at the
most recent redetermination of interest on such series and calculated in
accordance with accepted financial practice.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. This Indenture is subject to the mandatory provisions of the Trust
Indenture Act which are incorporated by reference in and made a part of this
indenture. The following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company
and any other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, reference to another statute or
defined by rules of the Securities and Exchange Commission have the meanings
assigned to them by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words
in the plural include the singular;
(6) if the applicable series of Debt Securities are
subordinated pursuant to Article XII, unsecured indebtedness shall not
be deemed to be subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
ARTICLE II
Debt Securities
---------------
SECTION 2.01. FORMS GENERALLY. The Debt Securities of each
series shall be in substantially the form established without the approval of
any Holder by or pursuant to a resolution of the Board of Directors or in one or
more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as the Company
may deem appropriate (and, if not contained in a Supplemental Indenture entered
into in accordance with Article IX, as are not prohibited by the provisions of
this Indenture) or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
executing such Debt Securities as evidenced by their execution of the Debt
Securities.
The definitive Debt Securities of each series 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 Debt
Securities, as evidenced by their execution of such Debt Securities.
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SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's Certificate of Authentication on all Debt Securities authenticated
by the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
----------------------------------,
As Trustee
By__________________________________
Authorized Signature
SECTION 2.03. PRINCIPAL AMOUNT; ISSUABLE IN SERIES. The
aggregate principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established, without the approval of any Holders, in or pursuant to a
resolution of the Board of Directors and set forth in an Officers' Certificate,
or established in one or more Indentures supplemental hereto, prior to the
issuance of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any, or
the method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will
be determined, in the case of Registered Securities, the record dates
for the determination of Holders thereof to whom such interest is
payable; and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve thirty-day months;
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(5) the Place or Places of Payment, if any, in addition to or
instead of the corporate trust office of the Trustee where the
principal of, and interest on, Debt Securities of the series shall be
payable;
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
price or prices to which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligations;
(8) the terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion
or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest
on Debt Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will
be determined;
(11) if the principal amount payable at the Stated Maturity of
Debt Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable
upon any maturity other than the Stated Maturity or which will be
deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined); and
the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of Dollar
Equivalent;
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(12) any changes or additions to Article XI, including the
addition of additional covenants that may be subject to the covenant
defeasance option pursuant to Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States
as at the time of payment is legal tender for payment of public and
private debts, the coin or Currency or Currencies or units of two or
more Currencies in which payment of the principal of and premium, if
any, and interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this
Indenture as currently in effect;
(16) any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the Holders to declare the principal of and
interest on, such Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form; and the Depositary for
such Global Security or Securities and the form of any legend or
legends to be borne by any such Global Security or Securities in
addition to or in lieu of the legend referred to in Section 2.15;
(18) any trustees, authenticating or paying agents,
transfer agents or registrars;
(19) the applicability of, and any addition to or change in
the covenants and definitions currently set forth in this Indenture or
in the terms currently set forth in Article X, including conditioning
any merger, conveyance, transfer or lease permitted by Article X upon
the satisfaction of an Indebtedness coverage standard by the Company
and Successor Company (as defined in Article X);
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(20) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of this
Indenture as currently in effect;
(21) the subordination, if any, of the Debt Securities
of the series pursuant to Article XII and any changes or
additions to Article XII;
(22) with regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(23) any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of this
Indenture).
All Debt Securities of any one series appertaining thereto
shall be substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to such resolution of the Board of
Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto.
SECTION 2.04. EXECUTION OF DEBT SECURITIES. The Debt
Securities shall be signed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or a Vice President and by its
Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such
signatures upon the Debt Securities may be the manual or facsimile signatures of
the present or any future such authorized officers and may be imprinted or
otherwise reproduced on the Debt Securities. The seal of the Company, if any,
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate
of authentication substantially in the form hereinbefore recited, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Debt Security executed by the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any
of the Debt Securities shall cease to be such officer before the Debt Securities
so signed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Debt Securities had not ceased to be such officer of the Company; and any Debt
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security,
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shall be the proper officers of the Company, although at the date of such Debt
Security or of the execution of this Indenture any such Person was not such
officer.
SECTION 2.05. AUTHENTICATION AND DELIVERY OF DEBT SECURITIES.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debt Securities to or upon a Company Order. In
authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Debt
Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance with
Section 13.05 which shall also state:
(a) that the form of such Debt Securities has been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by
Section 2.01 in conformity with the provisions of this
Indenture;
(b) that the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this
Indenture;
(c) that such Debt 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 except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(d) that the Company has the corporate power to
issue such Debt Securities and has duly taken all
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necessary corporate action with respect to such
issuance;
(e) that the issuance of such Debt Securities will
not contravene the charter or by-laws of the Company or result
in any material violation of any of the terms or provisions of
any law or regulation or of any indenture, mortgage or other
agreement known to such counsel by which the Company is bound;
(f) that authentication and delivery of such Debt
Securities and the execution and delivery of any supplemental
Indenture will not violate the terms of this Indenture; and
(g) such other matters as the Trustee may
reasonably request.
Such Opinion of Counsel need express no opinion as to whether
a court in the United States would render a money judgment in a currency other
than that of the United States.
The Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Debt Securities of any series. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Debt Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any
series, each Debt Security shall be dated the date of its authentication.
SECTION 2.06. DENOMINATION OF DEBT SECURITIES. Unless
otherwise provided in the form of Debt Security for any series, the Debt
Securities of each series shall be issuable only as Registered Securities in
such denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
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SECTION 2.07. REGISTRATION OF TRANSFER AND EXCHANGE. (a) The
Company shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount.
Unless and until otherwise determined by the Company by
resolution of the Board of Directors, the register of the Company for the
purpose of registration, exchange or registration of transfer of the Registered
Securities shall be kept at the corporate trust office of the Trustee and, for
this purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global
Security) may be exchanged for a like aggregate principal amount of Registered
Securities of the same series of other authorized denominations. Subject to
Section 2.15, Registered Securities to be exchanged shall be surrendered at the
office or agency to be maintained by the Company as provided in Section 4.02,
and the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Registered Security or Registered Securities which the
Holder making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or
registration of transfer of Debt Securities (except as provided by Section
2.09), but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto, other than
those expressly
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provided in this Indenture to be made at the Company's own expense or without
expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Debt Securities for a period of 15 days next
preceding any mailing of notice of redemption of Debt Securities of such series
or (b) to register the transfer of or exchange any Debt Securities selected,
called or being called for redemption.
Prior to the due presentation for registration of transfer of
any Debt Security, the Company, the Trustee, any paying agent or any Registrar
may deem and treat the Person in whose name a Debt Security is registered as the
absolute owner of such Debt Security for the purpose of receiving payment of
principal of, and premium, if any, and interest on, such Debt Security and for
all other purposes whatsoever, whether or not such Debt Security is overdue, and
none of the Company, the Trustee, any paying agent or Registrar shall be
affected by notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee,
any paying agent or any Registrar will have any responsibility or liability for
any aspect of the records relating to, or payments made on account of,
beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 2.08. TEMPORARY DEBT SECURITIES. Pending the
preparation of definitive Debt Securities of any series, the Company may execute
and the Trustee shall authenticate and deliver temporary Debt Securities
(printed, lithographed, photocopied, typewritten or otherwise produced) of any
authorized denomination, and substantially in the form of the definitive Debt
Securities in lieu of which they are issued, in registered form and with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Debt Securities.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt Securities
of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
at a Place of Payment for such series, without charge to the Holder thereof,
except as provided in Section 2.07 in connection with a transfer, and upon
surrender for cancellation of
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any one or more temporary Debt Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor. Until so exchanged, temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of such series, except as
otherwise specified as contemplated by Section 2.03(17) with respect to the
payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security
for a definitive Global Security or for the individual Debt Securities
represented thereby pursuant to Section 2.07 or this Section 2.08, the temporary
Global Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. MUTILATED, DESTROYED, LOST OR STOLEN DEBT
SECURITIES. If (i) any mutilated Debt Security is surrendered to the Trustee at
its corporate trust office (in the case of Registered Securities) or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any paying agent harmless, and neither the Company nor the
Trustee receives notice that such Debt Security has been acquired by a bona fide
purchaser, then the Company shall execute and, upon a Company Order, the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like tenor, form, terms and principal amount, bearing a number
not contemporaneously Outstanding. Upon the issuance of any substituted Debt
Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Debt Security which has matured
or is about to mature or which has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant
to the provisions of this Section 2.09 by virtue of the fact that any Debt
Security is destroyed, lost or stolen shall
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constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that series duly
issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities,
and shall preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. CANCELLATION OF SURRENDERED DEBT SECURITIES. All
Debt Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancellation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be destroyed
(subject to the record retention requirements of the Exchange Act) and
certification of their destruction delivered to the Company, unless otherwise
directed. On request of the Company, the Trustee shall deliver to the Company
canceled Debt Securities held by the Trustee. If the Company shall acquire any
of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented thereby unless and
until the same are delivered or surrendered to the Trustee for cancellation. The
Company may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11. PROVISIONS OF THE INDENTURE AND DEBT SECURITIES
FOR THE SOLE BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture
or in the Debt Securities, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto, the Holders or any Registrar
or paying agent, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto, the Holders and any Registrar and paying agents.
SECTION 2.12. PAYMENT OF INTEREST; RIGHTS PRESERVED. (a)
Interest on any Registered Security that is payable and is punctually paid or
duly provided for on any interest payment date shall be paid to the Person in
whose name such Registered Security is registered at the close of business on
the regular record date for such interest notwithstanding the cancellation of
such Registered Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Registered
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Securities shall be made at the corporate trust office of the Trustee (except as
otherwise specified pursuant to Section 2.03), or at the option of the Company,
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided pursuant to Section
2.03 and in accordance with arrangements satisfactory to the Trustee, at the
option of the Registered Holder by wire transfer to an account designated by the
Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12
and Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. SECURITIES DENOMINATED IN FOREIGN CURRENCIES.
(a) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series will be made in
Dollars.
(b) For the purposes of calculating the principal amount of
Debt Securities of any series denominated in a Foreign Currency or in units of
two or more Foreign Currencies (including European Currency Units) for any
purpose under this Indenture, the principal amount of such Debt Securities at
any time Outstanding shall be deemed to be the Dollar Equivalent of such
principal amount as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of
two or more Currencies in which any payment with respect to any series of Debt
Securities may be made ceases to be a freely convertible Currency on United
States Currency markets, for any date thereafter on which payment of principal
of, or premium, if any, or interest on, the Debt Securities of a series is due,
the Company shall select the Currency of payment for use on such date, all as
provided in the Debt Securities of such series. In such event, the Company
shall, as provided in the Debt Securities of such series, notify the Trustee of
the Currency which it has selected to constitute the funds necessary to meet the
Company's obligations or such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. WIRE TRANSFERS. Notwithstanding any other
provision to the contrary in this Indenture, the Company may make any payment of
monies required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or
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mandatory redemption payments, interest payments or otherwise) by wire transfer
of immediately available funds to an account designated by the Trustee on or
before the date such moneys are to be paid to the Holders of the Debt Securities
in accordance with the terms hereof.
SECTION 2.15. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL
SECURITY. (a) If the Company shall establish pursuant to Sections 2.01 and 2.03
that the Debt Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officers' Certificate, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of 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 Depositary or a nominee of such successor Depositary", or such other
legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15
or of Section 2.07 to the contrary, and subject to the provisions of paragraph
(c) below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a
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successor Depositary for such Global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company shall execute, and the Trustee or its
agent, upon receipt of a Company Order for the authentication and delivery of
such individual Debt Securities of such series in exchange for such Global
Security, will authenticate and deliver, individual Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security or Securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Sections 2.01
and 2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Debt Securities
of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Persons beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued
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in exchange for a Global Security pursuant to this Section 2.15 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Registered Securities to the Persons
in whose names such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary or its nominee will
be payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Company and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered
as the owner thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. None of the Company, the Trustee, any Registrar,
the paying agent or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of its direct or indirect participants
relating to the beneficial ownership interests of the Global Security, (b) the
payments to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be liable
for any delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Debt Securities to be issued).
SECTION 2.16. MEDIUM TERM SECURITIES. Notwithstanding any
contrary provision herein, if all Debt Securities of a series are not to be
originally issued at one time, it shall not be necessary for the Company to
deliver to the Trustee an Officers' Certificate, resolutions of the Board of
Directors, supplemental Indenture, Opinion of Counsel or written order or any
other document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05
at or prior to the time of authentication of each Debt Security of such series
if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; PROVIDED, that any subsequent request by the Company to the
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the
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statements made in the Officers' Certificate delivered pursuant to Section 2.05
or 13.05 shall be true and correct as if made on such date and that the Opinion
of Counsel delivered at or prior to such time of authentication of an original
issuance of Debt Securities shall specifically state that it shall relate to all
subsequent issuances of Debt Securities of such series that are identical to the
Debt Securities issued in the first issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
SECTION 2.17. DEFAULTED INTEREST. Any interest on any Debt
Security of a particular series which is payable, but is not punctually paid or
duly provided for, on the dates and in the manner provided in the Debt
Securities of such series and in this Indenture (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered Holder thereof
on the relevant record date by virtue of having been such Registered Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series 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
such Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
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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
thereof at its address as it appears in the Security Register, not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series are
registered at the close of business on such special record date.
(ii) The Company may make payment of any Defaulted Interest on
the Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Registered Securities of such series may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.18. JUDGMENTS. The Company may provide pursuant to
Section 2.03 for Debt Securities of any series that (a) the obligation, if any,
of the Company to pay the principal of, and premium, if any, and interest on,
the Debt Securities of any series in a Foreign Currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 2.03 is of the
essence and agrees that, to the fullest extent possible under applicable law,
judgments in respect of Debt Securities of such series shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of, and premium, if any, and interest on,
such Debt Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other Currency (after any premium and cost exchange) on the business day in
the country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
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ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF DEBT
SECURITIES. In case the Company shall desire to exercise the right to redeem all
or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, a resolution of the Board of Directors of the
Company or a supplemental Indenture, the Company shall fix a date for redemption
and shall give notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the Holders of Debt Securities of such
series so to be redeemed as a whole or in part, in the manner provided in
Section 13.03. The notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect in
the notice to the Holder of any Debt Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the date fixed
for redemption, the redemption price at which Debt Securities of such series are
to be redeemed, the Place or Places of Payment that payment will be made upon
presentation and surrender of such Debt Securities, that any interest accrued to
the date fixed for redemption will be paid as specified in said notice, that the
redemption is for a sinking fund payment (if applicable), that, if the Company
defaults on making such redemption payment or if the Debt Securities of that
series are subordinated pursuant to the terms of Article XII the paying agent is
prohibited from making such payment pursuant to the terms of this Indenture,
that on and after said date any interest thereon or on the portions thereof to
be redeemed will cease to accrue, that in the case of Original Issue Discount
Securities original issue discount accrued after the date fixed for redemption
will cease to accrue, the terms of the Debt Securities of that series pursuant
to which the Debt Securities of that series are being redeemed and that no
representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Debt Securities of that series. If
less than all the Debt Securities of a series are to be redeemed the notice of
redemption shall specify the CUSIP numbers of the Debt Securities of that series
to be redeemed. In case any Debt Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
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redemption, upon surrender of such Debt Security, a new Debt Security or Debt
Securities of that series in principal amount equal to the unredeemed portion
thereof.
At least 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein. If fewer than all the Debt Securities of a
series are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
less than 15 days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered
Securities, 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) an amount of money in the Currency in which such Debt Securities are
denominated (except as provided pursuant to Section 2.03) sufficient to pay the
redemption price of such Registered Securities or any portions thereof that are
to be redeemed on that date.
If less than all the Debt Securities of like tenor and terms
of a series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions) the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where more
than one Registered Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered
as if it were represented by one Registered Security of such series. The Trustee
shall promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. PAYMENT OF DEBT SECURITIES CALLED FOR
REDEMPTION. If notice of redemption has been given as provided in Section 3.02,
the Debt Securities or portions of Debt Securities of the series with respect to
which such notice has been given
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shall become due and payable on the date and at the Place or Places of Payment
stated in such notice at the applicable redemption price, together with any
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date)
any interest on the Debt Securities or portions of Debt Securities of any series
so called for redemption shall cease to accrue and any original issue discount
in the case of Original Issue Discount Securities shall cease to accrue. On
presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed
for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office or such other office or agency of the
Company as is specified pursuant to Section 2.03, if the Company, the Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Registrar 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 Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, 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 Debt Security
so surrendered; except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary
for such Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered. In the case of a Debt Security
providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
SECTION 3.04. MANDATORY AND OPTIONAL SINKING FUNDS. The
minimum amount of any sinking fund payment provided for by the terms of Debt
Securities of any series, resolution of the Board of Directors or a supplemental
Indenture 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 Debt
Securities of any series, resolution of the Board of Directors or a supplemental
Indenture is herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Debt Securities of a
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series in cash, the Company may at its option (a) deliver to the Trustee Debt
Securities of that series theretofore purchased or otherwise acquired by the
Company or (b) receive credit for the principal amount of Debt Securities of
that series which have been redeemed either at the election of the Company
pursuant to the terms of such Debt Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, resolution or supplemental Indenture; PROVIDED, that such Debt
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Debt Securities, resolution or supplemental Indenture for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 3.05. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any series of
Debt 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, any resolution or supplemental
Indenture, the portion thereof, if any, which is to be satisfied by payment of
cash in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Debt Securities of that
series pursuant to this Section 3.05 (which Debt Securities, if not previously
redeemed, will accompany such certificate) and whether the Company intends to
exercise its right to make any permitted optional sinking fund payment with
respect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company
to deliver such certificate (or to deliver the Debt Securities specified in this
paragraph) shall not constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking fund payment date
for that series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
in cash which shall equal or exceed $100,000 (or a lesser sum if the Company
shall so request) with respect to the Debt Securities of any particular series
shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking
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fund payment date, on the sinking fund payment date following the date of such
payment) to the redemption of such Debt Securities at the Redemption Price
specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Debt Securities shall be added to the next cash
sinking fund payment received by the Trustee for such series and, together with
such payment, shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series
at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed
upon such sinking fund payment date in the manner specified in the last
paragraph of Section 3.02 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Debt Securities are being
redeemed by operation of the sinking fund. Such notice having been duly given,
the redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own paying agent, the Company shall segregate and hold in trust) in cash a sum
in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) equal to any interest accrued to
the date fixed for redemption of Debt Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series
with sinking fund moneys or mail any notice of redemption of such Debt
Securities by operation of the sinking fund for such series during the
continuance of a Default in payment of interest on such Debt Securities or of
any Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to such Debt Securities, except that if the
notice of redemption of any such Debt Securities shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee shall redeem such
Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the
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continuance of such Default or Event of Default, be held as security for the
payment of such Debt Securities; PROVIDED, HOWEVER, that in case such Event of
Default or Default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date for
such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. PAYMENT OF PRINCIPAL OF, AND PREMIUM, IF ANY,
AND INTEREST ON, DEBT SECURITIES. The Company, for the benefit of each series of
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities at the
place, at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a).
Principal, premium and interest of Debt Securities of any
series shall be considered paid on the date due if on such date the Trustee or
any paying agent holds in accordance with this Indenture money sufficient to pay
in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) all principal, premium and
interest then due and, in the case of Debt Securities subordinated pursuant to
the terms of Article XII, the Trustee or such paying agent, as the case may be,
is not prohibited from paying such money to the Holders on that date pursuant to
the terms of the Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Debt Securities and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR
REGISTRATION OF TRANSFER, EXCHANGE AND PAYMENT OF DEBT SECURITIES. The Company
will maintain in each Place of Payment for any series of Debt Securities, an
office or agency where Debt Securities of such series may be presented or
surrendered for payment, where Debt Securities of such series may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities of such 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
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corporate trust office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
Location of any such different or additional office or agency.
SECTION 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.08, a
Trustee, so that there shall at all times be a Trustee hereunder with respect to
each series of Debt Securities.
SECTION 4.04. DUTIES OF PAYING AGENTS, ETC. (a) The Company
shall cause each paying agent, if any, other than the Trustee, to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series (whether such sums have been paid to
it by the Company or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of and premium, if any, or
interest on, the Debt Securities of such series when the same shall be
due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of, and premium, if any, or interest
on, the Debt Securities if any, of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so
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becoming due. The Company will promptly notify the Trustee of any failure by the
Company to take such action or the failure by any other obligor on such Debt
Securities to make any payment of the principal of, and premium, if any, or
interest on, such Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it or any paying
agent, as required by this Section 4.04, 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.
(d) Whenever the Company shall have one or more paying agents
with respect to any series of Debt Securities, it will, prior to each due date
of the principal of, and premium, if any, or interest on, any Debt Securities of
such series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.04 is subject to the provisions of Section 11.05.
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT. The Company
will deliver to the Trustee, on or before a date not more than four months after
the end of each fiscal year of the Company (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, that (i) in the course of his performance of
his duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
Section 4.06. FURTHER INSTRUMENTS AND ACTS. The Company will,
upon request of the Trustee, execute and deliver such further instruments and do
such further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
Section 4.07. EXISTENCE. Subject to Article X, the
Company will do or cause to be done all, things necessary to
preserve and keep in full force and effect its existence and
rights (charter and statutory); PROVIDED, HOWEVER, that the
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Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 4.08. MAINTENANCE OF PROPERTIES. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order in all material respects and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on by the Company and its Subsidiaries may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent the Company or a Subsidiary from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, not materially detrimental to the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and not
disadvantageous in any material respect to the Holders.
SECTION 4.09. PAYMENT OF TAXES AND OTHER CLAIMS. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Company or any Subsidiary, PROVIDED, HOWEVER, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 4.10. LIMITATION ON LIENS. Unless the Company
contemporaneously secures the Debt Securities equally and ratably with (or prior
to) such obligation, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or permit to exist any Lien on
any Principal Property, or any shares of stock or any Indebtedness of any
Restricted Subsidiary whether owned on the Issue Date or thereafter acquired,
securing any obligation except for:
(i) Permitted Liens; or
(ii) Liens other than those referred to in Section 4.10(i)
above securing Indebtedness if, after giving pro forma effect to the
Incurrence of such Indebtedness (and the receipt and application of the
proceeds thereof) or the securing of outstanding Indebtedness, the sum
of (without duplication) (A) all Indebtedness of the Company and its
Subsidiaries secured by Liens on Principal Property (other
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then Permitted Liens) and (B) all Attributable Indebtedness in respect
of Sale/Leaseback Transactions with respect to any Principal Property,
at the time of determination does not exceed 10% of the total
consolidated stockholders' equity of the Company as shown on the
audited consolidated balance sheet contained in the latest annual
report to stockholders of the Company.
SECTION 4.11. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The
Company shall not, and shall not permit any of its Subsidiaries to, enter into
any Sale/Leaseback Transaction with respect to any Principal Property unless (i)
the Company or such Subsidiary would be entitled to create a Lien on such
Principal Property securing Indebtedness in an amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction without securing
the Debt Securities pursuant to Section 4.10 or (ii) the Company, within six
months from the effective date of such Sale/Leaseback Transaction, applies to
the voluntary defeasance or retirement (excluding retirements of Debt Securities
and other Indebtedness ranking pari passu with the Debt Securities as a result
of conversions or pursuant to mandatory sinking fund or mandatory prepayment
provisions or by payment at maturity) of Debt Securities or other Indebtedness
ranking pari passu with the Debt Securities an amount equal to the Attributable
Indebtedness in respect of such Sale/Leaseback Transaction.
ARTICLE V
Holders' Lists and Reports
By the Company and the Trustee
------------------------------
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO
NAMES AND ADDRESSES OF HOLDERS; PRESERVATION OF INFORMATION. The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list as of a date not more than 15 days prior to the time such list is
furnished;
PROVIDED, HOWEVER, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders (1) contained in the most recent list
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furnished to it as provided in this Section 5.01 or (2) received by it in the
capacity of paying agent or Registrar (if so acting) hereunder.
The Trustee may destroy any List furnished to it as provided
in this Section 5.01 upon receipt of a new List so furnished.
SECTION 5.02. COMMUNICATIONS TO HOLDERS. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture or the Debt
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act.
SECTION 5.03. REPORTS BY COMPANY. (a) The Company covenants
and agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee, within 15 days after the Company or such obligor, as the case may be,
is required to file the same with the Securities and Exchange Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company or such obligor,
as the case may be, may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such
obligor, as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
said Commission, in accordance with rules and regulations prescribed from time
to time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor
hereunder shall covenant and agree, to file with the Trustee and the Securities
and Exchange Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents,
and reports with respect to compliance by the Company or such obligor, as the
case may be, with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
SECTION 5.04. REPORTS BY TRUSTEE. The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the time and
in the manner provided pursuant thereto.
Reports pursuant to this Section 5.04 shall be transmitted by
mail:
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(1) to all Registered Holders, as the names and
addresses of such Holders appear in the Debt Security
Register;
(2) except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each holder of a Debt Security of any
series whose name and address appear in the information preserved at
the time by the Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders
shall be filed with the Securities and Exchange Commission and each stock
exchange (if any) on which the Debt Securities of any series are listed. The
Company agrees to notify promptly the Trustee whenever the Debt Securities of
any series become listed on any stock exchange and of any delisting thereof.
SECTION 5.05. RECORD DATES FOR ACTION BY HOLDERS. If the
Company shall solicit from the Holders of Debt Securities of any series any
action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action), the
Company may, at its option, by resolution of the Board of Directors, fix in
advance a record date for the determination of Holders of Debt Securities
entitled to take such action, but the Company shall have no obligation to do so.
Any such record date shall be fixed at the Company's discretion. If such a
record date is fixed, such action may be sought or given before or after the
record date, but only the Holders of Debt Securities of record at the close of
business on such record date shall be deemed to be Holders of Debt Securities
for the purpose of determining whether Holders of the requisite proportion of
Debt Securities of such series Outstanding have authorized or agreed or
consented to such action, and for that purpose the Debt Securities of such
series Outstanding shall be computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. EVENTS OF DEFAULT. If any one or more of the
following shall have occurred and be continuing with respect to Debt Securities
of any series (each of the following, an "Event of Default"):
(a) Default in the payment of any installment of interest upon
any Debt Securities of that series as and when the same shall become
due and payable, whether or not such payment shall be prohibited by
Article XII, if applicable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or
premium, if any, on any Debt Securities of that series as and
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when the same shall become due and payable, whether at maturity, upon
redemption, by declaration, upon required repurchase or otherwise,
whether or not such payment shall be prohibited by Article XII, if
applicable; or
(c) default in the payment of any sinking fund payment
with respect to any Debt Securities of that series as and
when the same shall become due and payable; or
(d) failure on the part of the Company to comply with
Article X; or
(e) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Debt Securities of that series, in any resolution of the
Board of Directors authorizing the issuance of that series of Debt
Securities, in this Indenture with respect to such series or in any
supplemental Indenture with respect to such series (other than a
covenant a default in the performance of which is elsewhere in this
Section specifically dealt with), continuing for a period of 60 days
after the date on which written notice specifying such failure and
requiring the Company to remedy the same shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the
Company is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default,
the total amount of such Indebtedness unpaid or accelerated exceeds
$30,000,000 or its Dollar Equivalent at the time and such default
remains uncured or such acceleration is not rescinded for 10 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time Outstanding; or
(g) the Company or any of its Restricted Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, (ii) consent to the
institution of, or fail to controvert within the time and in the manner
prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or
any such Restricted Subsidiary or for a substantial part of its
property, (iv) file an answer
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admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) admit in writing its inability or fail generally to pay
its debts as they become due, (vii) take corporate action for the
purpose of effecting any of the foregoing, or (viii) take any
comparable action under any foreign laws relating to insolvency; or
(h) the entry of an order or decree by a court having
competent jurisdiction in the premises for (i) relief in respect of the
Company or any of its Restricted Subsidiaries or a substantial part of
any of their property under Title 11 or the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or any such Restricted Subsidiary or for a
substantial part of any of their property (except any decree or order
appointing such official of any Restricted Subsidiary pursuant to a
plan under which the assets and operations of such Restricted
Subsidiary are transferred to or combined with another Subsidiary or
Subsidiaries of the Company or to the Company) or (iii) the winding-up
or liquidation of the Company or any such Restricted Subsidiary (except
any decree or order approving or ordering the winding up or liquidation
of the affairs of a Restricted Subsidiary pursuant to a plan under
which the assets and operations of such Restricted Subsidiary are
transferred to or combined with another Subsidiary or Subsidiaries of
the Company or to the Company); and such order or decree shall continue
unstayed and in effect for 60 consecutive days; or any similar relief
is granted under any foreign laws and the order or decree stays in
effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms
of the Debt Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time Outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that series)
and interest on all the Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
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The Holders of a majority in principal amount of the Debt
Securities of a particular series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree already rendered and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. Upon any such rescission, the parties hereto
shall be restored respectively to their several positions and rights hereunder,
and all rights, remedies and powers of the parties hereto shall continue as
though no proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee or such
Holder, then and in every such case the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
The foregoing Events of Default shall constitute Events of
Default whatever the reason for any such Event of Default and whether it is
voluntary or involuntary or is 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.
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (c), (d), (e), (f), (g), (h) or (i), its status
and what action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE, ETC. If
an Event of Default occurs and is continuing, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid or enforce the performance of any provision of the Debt Securities of
the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other
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obligor upon the Debt Securities of any series under Title 11 of the United
States Code or any other Federal or State bankruptcy, insolvency or similar law,
or in case a receiver, trustee or other similar official shall have been
appointed for its property, or in case of any other similar judicial proceedings
relative to the Company or any other obligor upon the Debt Securities of any
series, its creditors or its property, the Trustee, irrespective of whether the
principal of Debt Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
6.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal, premium, if any, and interest (or, if the Debt Securities of such
series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and
unpaid in respect of the Debt Securities of such series, and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable compensation to the Trustee,
its agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith) and of the Holders thereof allowed in any such
judicial proceedings relative to the Company, or any other obligor upon the Debt
Securities of such series, its creditors or its property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute all amounts received with respect to the claims of such
Holders and of the Trustee on their behalf, and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities Incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities, of any series, may be enforced
by the Trustee without the possession of any such Debt Securities or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment (except for
any amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings
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as the Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys or other property collected by the Trustee pursuant to Section 6.02 with
respect to Debt Securities of any series shall be applied, after giving effect
to the provisions of Article XII, if applicable, in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of all money due the Trustee
pursuant to Section 7.06;
SECOND: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
not have become due, to the payment of interest on the Debt Securities
of such series in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities of such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Debt Securities of such
series for principal and premium, if any, and interest, with interest
on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue
installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal
and premium, if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over
any other installment of interest, or of any Debt Security of such
series over any Debt Security of such series, ratably to
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the aggregate of such principal and premium, if any, and
interest; and
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.03. At least 15 days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.04. LIMITATION ON SUITS BY HOLDERS. No Holder of any
Debt Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture,
however, the right of any Holder of any Debt Security to receive payment of the
principal of, and premium, if any, and (subject to Section 2.12) interest on,
such Debt Security on or after the respective due dates expressed in such Debt
Security, and to institute suit for the enforcement of any such payment on or
after
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such respective dates, shall not be impaired or effected without the consent of
such Holder.
SECTION 6.05. REMEDIES CUMULATIVE; DELAY OR OMISSION IN
EXERCISE OF RIGHTS NOT A WAIVER OF DEFAULT. All powers and remedies given by
this Article VI to the Trustee or to the Holders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the Holders, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder to exercise any right or power accruing upon any
Default occurring and continuing as aforesaid, shall impair any such right or
power, or shall be construed to be a waiver of any such Default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article VI or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 6.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL
AMOUNT OF DEBT SECURITIES TO DIRECT TRUSTEE AND TO WAIVE DEFAULT. The Holders of
a majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding shall have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of such series; PROVIDED, HOWEVER, that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture, and
that subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and PROVIDED, FURTHER, HOWEVER, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities of that series waive any past Default or
Event of Default and its consequences for that series specified in the terms
thereof as contemplated by Section 2.03, except (i) a Default in the payment of
the principal of, and premium, if any, or interest on, any of the Debt
Securities and (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected thereby. In case
of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for
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every purpose of this Indenture, and the Company, the Trustee and the Holders of
the Debt Securities of that series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.07. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT,
BUT MAY WITHHOLD SUCH NOTICE IN CERTAIN CIRCUMSTANCES. The Trustee shall, within
90 days after the occurrence of a Default known to it with respect to a series
of Debt Securities give to the Holders thereof, in the manner provided in
Section 13.03, notice of all Defaults with respect to such series known to the
Trustee, unless such Defaults shall have been cured or waived before the giving
of such notice; PROVIDED, that, except in the case of Default in the payment of
the principal of, or premium, if any, or interest on, any of the Debt Securities
of such series or in the making of any sinking fund payment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a committee of directors or responsible officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN
CERTAIN SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this
indenture agree, and each Holder of any Debt Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit in the manner and to the extent provided in the Trust Indenture
Act, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.08 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than ten percent in principal
amount of the Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security on or after the due date
for such payment expressed in such Debt Security.
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The
Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have
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occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the
effect of the first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after the curing or
waiving of all Events of Default with respect to such series which may
have occurred:
(1) the duties and obligations of the Trustee with
respect to Debt Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations with respect to such series as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture; but the Trustee shall examine
the evidence furnished to it pursuant to Section 5.03 to
determine whether or not such evidence conforms to the
requirement of this Indenture;
(c) the Trustee shall not be liable for an error of judgment
made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance
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with the direction of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of that
series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be 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 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as
otherwise provided in Section 7.01:
(a) 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 or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Order
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of Debt Securities of any
series pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
Incurred therein or thereby;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, 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, approval
or other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then
outstanding Debt Securities of a series affected by such matter;
PROVIDED, HOWEVER, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be Incurred by
it in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to
so proceeding. The reasonable expense of every such investigation shall
be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder; and
(h) if any property other then cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property
to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax Liens or other prior
Liens or encumbrances thereon.
SECTION 7.03. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR
IN DEBT SECURITIES. The recitals contained herein and in the Debt Securities
(except the Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Debt Securities and perform its obligations
hereunder, and that the statements made by it or to be made by it in a Statement
of Eligibility and Qualification on Form T-1 supplied to the Company
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are true and accurate. The Trustee shall not be accountable for the use or
application by the Company of any of the Debt Securities or of the proceeds
thereof.
SECTION 7.04. TRUSTEE, PAYING AGENT OR REGISTRAR MAY OWN DEBT
SECURITIES. The Trustee or any paying agent or Registrar, in its individual or
any other capacity, may become the owner or pledgee of Debt Securities and
subject to the provisions of the Trust Indenture Act relating to conflicts of
interest and preferential claims may otherwise deal with the Company with the
same rights it would have if it were not Trustee, paying agent or Registrar.
SECTION 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST.
Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company upon a Company
Order.
SECTION 7.06. COMPENSATION AND REIMBURSEMENT. The Company
covenants and agrees to pay in Dollars to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for all services rendered
by it hereunder (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
Incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, willful misconduct or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim of liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee, as such, except funds
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held in trust for the payment of principal of, and premium, if any, or interest
on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. RIGHT OF TRUSTEE TO RELY ON AN OFFICERS'
CERTIFICATE WHERE NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE. The
Company may, but need not, appoint a separate Trustee for any one or more series
of Debt Securities. The Trustee may resign with respect to one or more or all
series of Debt Securities at any time by giving notice to the Company. The
Holders of a majority in principal amount of the Debt Securities of a particular
series may remove the Trustee for such series and only such series by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Debt Securities of a particular
series and such Holders do not reasonably promptly appoint a successor Trustee,
or if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of
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appointment by the successor Trustee in accordance with the applicable
requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days
after the retiring Trustee gives notice of resignation or is removed, the
retiring Trustee or the Holders of 25% in principal amount of the Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the appointment of a successor Trustee for the Debt Securities
of such series.
If the Trustee fails to comply with Section 7.10, any Holder
of Debt Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.06 shall continue
for the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or
successor trustee with respect to the Debt Securities of one or more series, the
Company, any retiring Trustee and each successor or separate Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (1) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with respect to the Debt
Securities of any series as to which any such retiring Trustee is not retiring
shall continue to be vested in such retiring Trustee and (2) that 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 separate, retiring or successor 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.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business or assets
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to, another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Debt Securities shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the Trust Indenture
Act. The Trustee shall have a combined capital and surplus of at least
$50,000,000, as set forth in its most recent published annual report of
condition. No obligor upon the Debt Securities of a particular series or Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee upon the Debt Securities of such series. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act; PROVIDED,
HOWEVER, that there shall be excluded from the operation of Section 310(b)(1) of
the Trust Indenture Act this Indenture or any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion
set forth in Section 310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who had resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. COMPLIANCE WITH TAX LAWS. The Trustee hereby
agrees to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium
(if any) and interest on the Debt Securities, whether acting as Trustee,
Security Registrar, paying agent or otherwise with respect to the Debt
Securities.
ARTICLE VIII
Concerning the Holders
----------------------
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SECTION 8.01. EVIDENCE OF ACTION BY HOLDERS. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any meeting of Holders duly called and held in accordance with the provisions
of Section 5.02 or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Holders.
SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF DEBT SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
proof of the execution of any instrument by a Holder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
The ownership of Registered Securities of any series shall be
proved by the Debt Security Register or by a certificate of the Registrar for
such series.
The Trustee may require such additional proof of any matter
referred to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. WHO MAY BE DEEMED OWNER OF DEBT SECURITIES.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee, any paying agent and any Registrar may deem
and treat the Person in whose name any Registered Security shall be registered
upon the books of the Company as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and (subject
to Section 2.03) interest on such Registered Security and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Registrar shall be affected by any notice to the contrary; and all such payments
so made to any such Holder for the time being, or upon his order, shall be valid
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for
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maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 8.04. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action and subject to the
following paragraph, any Holder of a Debt Security which is shown by the
evidence to be included in the Debt Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
corporate trust office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid
any such action taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Debt
Security and of any Debt Security issued upon transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or such other Debt Securities. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Registered Securities
entitled to give their consent or take any other action required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders of Registered Securities at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders of Registered Securities after such record
date. No such consent shall be valid or effective for more than 120 days after
such record date unless the consent of the Holders of the percentage in
aggregate principal amount of the Debt Securities of such series specified in
this Indenture shall have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURE MAY BE
ENTERED INTO WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the
Trust
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Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article X of
another Person to the Company, or successive successions, and the
assumption by the Successor Company (as defined in Section 10.01) of
the covenants, agreements and obligations of the Company in this
Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) as the Board of Directors shall consider to be
for the protection of the Holders of such Debt Securities, and to make
the occurrence, or the occurrence and continuance, of a Default in any
of such additional covenants, restrictions, conditions or provisions a
Default or an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture; PROVIDED, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular
period of grace after Default (which period may be shorter or longer
than that allowed in the case of other Defaults) or may provide for an
immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of
the Holders of a majority in aggregate principal amount of any or all
series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any
Debt Securities of any series that may be defective or inconsistent
with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series; to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any Indenture
supplemental hereto under the Trust Indenture Act as then in effect,
except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act;
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(e) to add to or change any of the provisions of this
Indenture to change or eliminate any restrictions on the payment of
principal of, or premium, if any, or interest on, Registered
Securities; PROVIDED, that any such action shall not adversely affect
the interests of the Holders of Debt Securities of any series in any
material respect or permit or facilitate the issuance of Debt
Securities of any series in uncertificated form;
(f) to comply with Article X;
(g) in the case of any Debt Securities, if any, subordinated
pursuant to Article XII, to make any change in Article XII that would
limit or terminate the benefits applicable to any holder of Senior
Indebtedness (or Representatives therefor) under Article XII;
(h) to add Guarantees with respect to the Debt
Securities or to secure the Debt Securities;
(i) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Debt Securities;
PROVIDED, HOWEVER, that any such addition, change or elimination not
otherwise permitted under this Section 9.01 shall (i) neither (A) apply
to any Debt 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 Debt
Security with respect to such provision or (ii) shall become effective
only when there is no such Debt Security Outstanding;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
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; and
(k) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental Indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental Indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions
of this Section 9.01 may be executed by the Company and the
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Trustee without the consent of the Holders of any of the Debt Securities at the
time Outstanding, notwithstanding any of the provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to
Article XII, an amendment under this Section 9.01 may not make any change that
adversely affects the rights under Article XII of any holder of such Senior
Indebtedness then Outstanding unless the holders of such Senior Indebtedness (or
any group or Representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section 9.01 becomes effective,
the Company shall mail to Holders of Debt Securities of each series affected
thereby a notice briefly describing such amendment. The failure to give such
notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section 9.01.
SECTION 9.02. MODIFICATION OF INDENTURE WITH CONSENT OF
HOLDERS OF DEBT SECURITIES. Without notice to any Holder but with the consent
(evidenced as provided in Section 8.01) of the Holders of not less than a
majority in aggregate principal amount of the outstanding Debt Securities of
each series affected by such supplemental Indenture, the Company, when
authorized by a resolution of the Board of Directors, and the Trustee may from
time to time and at any time enter into an Indenture or Indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental Indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of such series; provided, that no
such supplemental Indenture, without the consent of the Holders of each Debt
Security so affected, shall (i) reduce the percentage in principal amount of
Debt Securities of any series whose Holders must consent to an amendment; (ii)
reduce the rate of or extend the time for payment of interest on any Debt
Security; (iii) reduce the principal of or extend the Stated maturity of any
Debt Security; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
Other than that stated in the Debt Security; (vi) in the case of any Debt
Security subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; (vii) release
any security that may have been granted in respect of the Debt Securities; or
(viii) make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any
covenant or other provision of this Indenture which has been expressly included
solely for the benefit of one or more particular series of Debt Securities or
which modifies the rights
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of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors authorizing the execution of any such
supplemental Indenture, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental Indenture unless such supplemental Indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
In the case of any Debt Securities subordinated pursuant to
Article XII, an amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article XII of any holder of such Senior
Indebtedness then Outstanding unless the holders of such Senior Indebtedness (or
any group or Representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section 9.02 becomes effective,
the Company shall mail to Holders of Debt Securities of each series affected
thereby a notice briefly describing such amendment. The failure to give such
notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section 9.02.
SECTION 9.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental Indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Officers' Certificate and an opinion of Counsel as
conclusive evidence that any such supplemental Indenture complies with the
provisions of this Article IX.
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SECTION 9.04. DEBT SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Debt Securities of any series authenticated and
delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX 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. New Debt Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental Indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of such series then outstanding.
Failure to make the appropriate notation or to issue a new Debt Security of such
series shall not affect the validity of such amendment.
SECTION 9.05. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. CONSOLIDATIONS AND MERGERS OF THE COMPANY. The
Company shall not consolidate with or merge with or into any Person, or convey,
transfer or lease all or substantially all its assets, unless: (i) either (a)
the Company shall be the continuing Person in the case of a merger or (b) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities according to their
tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been Incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any)
comply with this Indenture.
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SECTION 10.02. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In
case of any consolidation or merger, or conveyance or transfer of the assets of
the Company as an entirety or virtually as an entirety in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Debt Securities. The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Debt Securities which the
Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Debt Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all such Debt Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Debt Securities appertaining thereto thereafter to be issued as may be
appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
----------------------------------------
SECTION 11.01. APPLICABILITY OF ARTICLE. If, pursuant to
Section 2.03, provision is made for the defeasance of Debt Securities of a
series, then the provisions of this Article XI relating to defeasance of Debt
Securities shall be applicable except as otherwise specified pursuant to Section
2.03 for Debt Securities of such series.
SECTION 11.02. SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE. (a) If at any time (i) the Company shall have delivered to the
Trustee for cancellation all Debt Securities of any series theretofore
authenticated and delivered (other than (1) any Debt Securities of such series
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09 and (2) Debt Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 11.05) or (ii) all Debt Securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable,
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or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
with the Trustee as trust funds the entire amount in the Currency in which such
Debt Securities are denominated (except as otherwise provided pursuant to
Section 2.03) sufficient to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be, and
if in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of such Debt Securities herein expressly provided for and rights to
receive payments of principal of, and premium, if any, and interest on, such
Debt Securities) with respect to the Debt Securities of such series, and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company
at any time may terminate, with respect to Debt Securities of a particular
series, (i) all its obligations under the Debt Securities of such series and
this Indenture with respect to the Debt Securities of such series ("legal
defeasance option") or (ii) its obligations with respect to the Debt Securities
of such series under clause (ii) of Section 10.01 and the related operation of
Section 6.01(d) and the operation of Sections 6.01(e), (f) and (i) ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Debt Securities of the defeased series may not be accelerated because of
an Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(d), (e), (f) and (i)
(except to the extent covenants or agreements referenced in such Sections remain
applicable).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have
peen paid in full.
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Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall
survive.
SECTION 11.03. CONDITIONS OF DEFEASANCE. The Company may
exercise its legal defeasance option or its covenant defeasance option with
respect to Debt Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of,
and premium, if any, and interest on, the Debt Securities of such
series to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay the principal, premium
and interest when due on all the Debt Securities of such series to
maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the
date of such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such
series are subordinated pursuant to Article XII, is not prohibited by
Article XII;
(6) the Company delivers to the Trustee an opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the event of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case of the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner
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and at the same times as would have been the case if such
defeasance had not occurred;
(8) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of
such series as contemplated by this Article XI have been compiled with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
SECTION 11.04. APPLICATION OF TRUST MONEY. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series. In the event the Debt Securities of
the defeased series are subordinated pursuant to Article XII, money and
securities so held in trust are not subject to Article XII.
SECTION 11.05. REPAYMENT TO COMPANY. The Trustee and any paying agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and any paying agent shall pay to the Company upon request any money held by
them for the payment of principal, premium or interest that remains unclaimed
for two years, and, thereafter, Holders entitled to such money must look to the
Company for payment as general creditors.
SECTION 11.06. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other change imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
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SECTION 11.07. REINSTATEMENT. If the Trustee or any paying
agent is unable to apply any money or U.S. Government Obligations in accordance
with this Article XI by reason of any legal proceeding or by reason of any order
or judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. APPLICABILITY OF ARTICLE; AGREEMENT TO
SUBORDINATE. The provisions of this Article XII shall be applicable to the Debt
Securities of any series (Debt Securities of such series referred to in this
Article XII as "Subordinated Debt Securities") designated, pursuant to Section
2.03, as subordinated to Senior Indebtedness. Each Holder by accepting a
Subordinated Debt Security agrees that the Indebtedness evidenced by such
Subordinated Debt Security is subordinated in right of payment, to the extent
and in the manner provided in this Article XII, to the prior payment of all
Senior Indebtedness and that the subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness. All provisions of this
Article XII shall be subject to Section 12.12.
SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of the Senior Indebtedness (including
interest (if any), accruing on or after the commencement of a
proceeding in bankruptcy, whether or not allowed as a claim against the
Company in such bankruptcy proceeding) before Holders of Subordinated
Debt Securities shall be entitled to receive any payment of principal
of, or premium, if any, or interest on, the Subordinated Debt
Securities; and
(2) until the Senior Indebtedness is paid in full, any
distribution to which Holders of Subordinated Debt Securities would be
entitled but for this Article XII shall be made to holders of Senior
Indebtedness as their interests may appear, except that such Holders
may receive shares of stock and any debt securities that are
subordinated to Senior Indebtedness
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to at least the same extent as the Subordinated Debt Securities.
SECTION 12.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may
not pay the principal of, or premium, if any, or interest on, the Subordinated
Debt Securities or make any deposit pursuant to Article XI and may not
repurchase, redeem or otherwise retire (except, in the case of Subordinated Debt
Securities that provide for a mandatory sinking fund pursuant to Section 3.04,
by the delivery of Subordinated Debt Securities by the Company to the Trustee
pursuant to the first paragraph of Section 3.05) any Debt Securities
(collectively, "pay the Subordinated Debt Securities") if (i) any principal,
premium or interest in respect of Senior Indebtedness is not paid within any
applicable grace period (including at maturity) or (ii) any other default on
Senior Indebtedness occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, (x) the default
has been cured or waived and any such acceleration has been rescinded or (y)
such Senior Indebtedness has been paid in full in cash; PROVIDED, HOWEVER, that
the Company may pay the Subordinated Debt Securities without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of each issue of Designated Senior Indebtedness.
During the continuance of any default (other than a default described in clause
(i) or (ii) of the preceding sentence) with respect to any Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company and the Trustee of written
notice of such default from the Representative of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full in cash of such Designated Senior Indebtedness or (iii)
because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section 12.03), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Subordinated Debt Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of
Senior Indebtedness during such period; PROVIDED, HOWEVER, that if any Blockage
Notice within such 360-day period is given by or on behalf of any holders of
Designated Senior Indebtedness (other than the Bank Indebtedness), the
Representative of the Bank
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Indebtedness may give another Blockage Notice within such period; PROVIDED,
FURTHER, HOWEVER, that in no event may the total number of days during which any
Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate
during any 360 consecutive day period. For purposes of this Section 12.03, no
default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Senior Indebtedness, whether or not within a period of
360 consecutive days, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. ACCELERATION OF PAYMENT OF DEBT SECURITIES. If
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to Holders of Subordinated Debt Securities that because of
this Article XII should not have been made to them, the Holders who receive such
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
SECTION 12.06. SUBROGATION. After all Senior Indebtedness is
paid in full and until the Subordinated Debt Securities are paid in full,
Holders thereof shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article XII to holders of Senior Indebtedness which
otherwise would have been made to Holders of Subordinated Debt Securities is
not, as between the Company and such Holders, a payment by the Company on Senior
Indebtedness.
SECTION 12.07. RELATIVE RIGHTS. This Article XII defines the
relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of either
Subordinated Debt Securities or Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay principal of, and
premium, if any, and interest on, the Subordinated Debt Securities and
the Debt Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated
Debt Securities or Debt Securities from exercising its available
remedies upon a Default, subject to the rights of holders of Senior
Indebtedness
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to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.
SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness to enforce the subordination of
the Indebtedness evidenced by the Subordinated Debt Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 12.03, the Trustee or any paying agent may continue to
make payments on Subordinated Debt Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two business days prior to the date of such
payment, a responsible officer of the Trustee receives notice satisfactory to it
that payments may not be made under this Article XII. The Company, the
Registrar, any paying agent, a Representative or a holder of Senior Indebtedness
may give the notice; PROVIDED, HOWEVER, that, if an issue of Senior Indebtedness
has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of it rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 12.11. ARTICLE XII NOT TO PREVENT DEFAULTS OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment pursuant to the Debt
Securities by reason of any provision in this Article XII shall not be construed
as preventing the occurrence of a Default. Nothing in this Article XII shall
have any effect on the right of the Holders or the Trustee to accelerate the
maturity of either the Subordinated Debt Securities or the Debt Securities, as
the case may be.
SECTION 12.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be
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subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article XII, and none of the Holders thereof
shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the Company.
SECTION 12.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to such
Holders of (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XII. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Holder by accepting a Subordinated Debt Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders of Subordinated
Debt Securities and the holders of Senior Indebtedness as provided in this
Article XII and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Subordinated Debt
Securities or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article XII
or otherwise.
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SECTION 12.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Subordinated Debt Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY
INDENTURE. All the covenant's stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF
SUCCESSOR COMPANY VALID. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force
and effect by the like board, committee or officer of any Successor Company.
SECTION 13.03. REQUIRED NOTICES OR DEMANDS. Except as
otherwise expressly provided in this Indenture, any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: M.A. Hanna Company, Suite 36-5000, 200 Public Square, Cleveland, Ohio
44114, Attention: Chief Financial Officer. Except as otherwise expressly
provided in this Indenture, any notice, direction, request or demand by the
Company or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being deposited, postage prepaid, in a post office letter box in
the United States addressed to the corporate trust office of the Trustee
initially at NBD Bank, 611 Woodward Avenue, Corporate Trust Administration, 11th
Floor, Detroit, Michigan 48226. The Company or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice required or permitted to a Registered Holder by the
Company or the Trustee pursuant to the provisions of this Indenture shall be
deemed to be properly mailed by being deposited
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postage prepaid in a post office letter box in the United States addressed to
such Holder at the address of such Holder as shown on the Debt Security
Register. Any report pursuant to Section 313 of the Trust Indenture Act shall be
transmitted in compliance with subsection (c) therein.
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail, then
such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose thereunder.
In the event of suspension of publication of any Authorized
Newspaper or by reason of any other cause it shall be impracticable to give
notice by publication, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for every purpose
hereunder.
Failure to mail a notice or communication to a Holder or any
defect in it or any defect in any notice by publication as to a Holder shall not
affect the sufficiency of such notice with respect to other Holders. If a notice
or communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.04. INDENTURE AND DEBT SECURITIES TO BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture and each
Debt Security shall be deemed to be New York contracts, and for all purposes
shall be construed in accordance with the laws of said State (without reference
to principles of conflicts of law).
SECTION 13.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO
BE FURNISHED UPON APPLICATION OR DEMAND BY THE COMPANY. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such
77
<PAGE> 86
certificate or opinion are based, (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (4) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
SECTION 13.06. PAYMENTS DUE ON LEGAL HOLIDAYS. In any case
where the date of maturity of interest on or principal of and premium, if any,
on the Debt Securities of a series or the date fixed for redemption or repayment
of any Debt Security or the making of any sinking fund payment shall not be a
business day at any Place of Payment for the Debt Securities of such series,
then payment of interest or principal and premium, if any, or the making of such
sinking fund payment need not be made on such date at such Place of Payment, 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 date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date. If
a record date is not a business day, the record date shall not be affected.
SECTION 13.07. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 13.08. COMPUTATION OF INTEREST ON DEBT SECURITIES.
Interest, if any, on the Debt Securities shall be computed on the basis of a
360-day year of twelve 30-day months, except as may otherwise be provided
pursuant to Section 2.03.
SECTION 13.09. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. An incorporator or
any past, present or future director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Debt Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt
Securities.
SECTION 13.11. SEVERABILITY. In case any provision in this
Indenture, the Debt Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the
78
<PAGE> 87
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. EFFECT OF HEADINGS. The article and
section headings herein and in the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 13.13. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
The Trustee hereby accepts the trusts in this Indenture upon
the terms and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly signed as of the date first written above.
M.A. HANNA COMPANY
By: ____________________________
Name:
Title:
NBD BANK
By: ____________________________
Name:
Title:
79
<PAGE> 1
Exhibit 5.1
June 11, 1996
M. A. Hanna Company
Suite 36-5000
200 Public Square
Cleveland, Ohio 44114-2304
Re: $300,000,000 Aggregate Amount of Debt
Securities of M. A. Hanna Company
-------------------------------------
Gentlemen:
We are acting as special counsel for M. A. Hanna Company, a
Delaware corporation (the "Company"), in connection with the creation and
authorization of the issuance and sale of up to $300,000,000 aggregate amount of
Debt Securities (the "Securities"), to be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and NBD Bank, as trustee
(the "Trustee").
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based thereupon, but
subject to the assumptions and qualifications set forth below, we are of the
opinion that:
1. The Indenture, when duly authorized, executed and
delivered by the Company and the Trustee, will constitute a valid and binding
instrument of the Company.
2. The Securities, when duly authorized, executed,
authenticated and delivered to and paid for by the purchasers thereof in
accordance with the terms of such Securities, and the Indenture and the
Underwriting Agreement, will be valid and binding obligations of the Company and
will be entitled to the benefits of the Indenture.
In rendering the foregoing opinions we have assumed that
(i) the definitive information, including, without limitation, the definitive
terms of the Securities, remaining to
<PAGE> 2
be completed in the form of the Indenture relating to the Securities as filed as
Exhibit 4.1 to the Registration Statement filed by the Company to effect
registration of the Securities under the Securities Act of 1933 (the
"Registration Statement"), will be so completed and the Indenture and Securities
will be duly authorized by the Board of Directors of the Company or its designee
in such form with such completions, and (ii) the Underwriting Agreement will be
authorized by the Board of the Company and executed and delivered by the
Company and the Underwriters in substantially the form filed as Exhibit 1.1
to the Registration Statement.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement on Form S-3 filed by the Company to effect
registration of the Securities under the Securities Act of 1933 and to the
reference to us under the caption "Legal Matters" in the Prospectus constituting
a part of such Registration Statement.
Very truly yours,
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 12.1
M.A. Hanna Company
Ratio of Earnings to Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
Three Months
Ended
March 31 Year Ended December 31
----------------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated pretax income from
continuing operations $23,426 $21,078 $ 98,821 $ 66,222 $37,654 $27,005 $(16,195)
Adjustments
Fixed charges - excluding
capitalized interest
Consolidated interest expense 6,036 6,937 26,278 28,549 32,258 32,509 23,221
Interest portion of rental expense 1,548 1,432 5,942 5,624 5,281 4,729 4,905
----------------------------------------------------------------------
Total fixed charges 7,584 8,369 32,220 34,173 37,539 37,238 28,126
----------------------------------------------------------------------
Adjusted earnings $31,010 $29,447 $131,041 $100,395 $75,193 $64,243 $ 11,931
======================================================================
Ratio of earnings to fixed charges 4.09 3.52 4.07 2.94 2.00 1.73 0.42
</TABLE>
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 29, 1996, which appears on page 38 of the 1995 Annual Report to
Shareholders of M.A. Hanna Company, which is incorporated by reference in M.A.
Hanna Company's Annual Report on Form 10-K for the year ended December 31, 1995.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page F-2 of such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICE WATERHOUSE LLP
Cleveland, Ohio
June 10, 1996
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of M.A. Hanna Company
for the registration of $300,000,000 of debt securities and to the incorporation
by reference therein of our report dated January 31, 1995, with respect to the
consolidated financial statements and schedule of M.A. Hanna Company included in
its Annual Report (Form 10-K) for the year ended December 31, 1995, as amended,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Cleveland, Ohio
June 10, 1996
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, That M.A. Hanna Company, a Delaware corporation
(the "Company"), which anticipates filing with the Securities and Exchange
Commission, Washington, D.C. ("SEC"), under the Securities Act of 1933, as
amended ("Act"), a registration statement or registration statements on Form S-3
or such other form as the officers of the Company may determine may be
appropriate with respect to the offering and sale of up to $300 million of debt
securities, and each of the undersigned officers and Directors of the Company
hereby constitutes and appoints Martin D. Walker, Douglas J. McGregor, Michael
S. Duffey, John S. Pyke, Jr. and Kevin D. Cramer, and each of them, his or her
true and lawful attorney or attorneys to execute in his or her name, place and
stead in any such capacity, to sign, execute and file with the SEC such
aforesaid registration statements under the Act, including any amendment or
amendments or any post-effective amendment or amendments relating thereto with
all exhibits, and any and all document required to be filed with any federal or
state board or commission, pertaining to the securities subject to such
registration, granting unto said attorneys, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as each of them might or could do personally present,
hereby ratifying and confirming all that said attorney or attorneys, or any of
them, may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of the
1st day of May, 1996.
M. A. HANNA COMPANY
By /s/ John S. Pyke, Jr.
------------------------------------
John S. Pyke, Jr.
Vice President, General Counsel
and Secretary
By /s/ Martin D. Walker By /s/ Michael S. Duffey
---------------------------------- ------------------------------------
Martin D. Walker, Chairman and Michael S. Duffey, Vice President
Chief Executive Officer, Director Chief Financial Officer and Treasurer
<PAGE> 2
By /s/ Douglas J. McGregor By /s/ Thomas E. Lindsey
---------------------------------- ------------------------------------
Douglas J. McGregor, President Thomas E. Lindsey, Controller and
and Chief Operating Officer, Director Chief Accounting Officer
By /s/ B.C. Ames By /s/ C.A. Cartwright
---------------------------------- ------------------------------------
B.C. Ames, Director C.A. Cartwright, Director
By /s/ W.R. Embry By /s/ J.T. Eyton
---------------------------------- ------------------------------------
W.R. Embry, Director J.T. Eyton, Director
By /s/ G.D. Kirkham By /s/ M.L. Mann
---------------------------------- ------------------------------------
G.D. Kirkham, Director M.L. Mann, Director
By /s/ R.W. Pogue
----------------------------------
R.W. Pogue, Director
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
----------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT OF
1939, AS AMENDED, OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
----
-------------------------------
NBD BANK
(Exact name of Trustee as specified in its charter)
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal executive offices) (Zip Code) (I.R.S. Employer
Identification No.)
NBD BANK
611 WOODWARD AVE.
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: KAREN D. O'DONOGHUE (313) 225-3185
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
M. A. HANNA COMPANY
(Exact name of obligor as specified in its charter)
Delaware 34-0232435
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Suite 36-500
200 Public Square
Cleveland, Ohio 44114
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
1
<PAGE> 2
1. GENERAL INFORMATION.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
State of Michigan Financial Institutions Bureau
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting securities
of the Trustee:
AS OF JUNE 7, 1996
- -------------------------------------------------------------------------------
COLUMN A COLUMN B
- -------------------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
- -------------------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is not a Trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of the
Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
2
<PAGE> 3
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor and its directors,
partners and executive officers, taken as a group, do not exceed one percent
of the outstanding voting securities of the Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its directors,
partners and executive officers, taken as a group, do not exceed one percent
of the outstanding voting securities of the Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns beneficially
or holds as collateral security for obligations in default does not exceed
one percent of the outstanding securities of the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of an underwriter for the obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default voting securities of a person who, to the knowledge
of the Trustee (1) owns 10% or more of the voting securities of the obligor,
or (2) is an affiliate, other than a subsidiary, of the obligor.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF
THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of a person who, to the knowledge of
the Trustee, owns 50 percent or more of the voting securities of the
obligor.
3
<PAGE> 4
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
The obligor is not indebted to the Trustee.
13. DEFAULTS BY THE OBLIGOR.
None.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.
(1) Articles of Incorporation of the Trustee.
(2) Certificate of Authority of the Trustee to commence
business. Incorporated by reference to Exhibit (2)
attached.
(3) Authorization of the Trustee to exercise corporate trust
powers. Incorporated by reference to Exhibit (2)
attached.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
Exhibit (6) filed with Amendment No. 1 to Form T-1
Statement, Registration No. 22-4501.
(7) Report of condition of Trustee.
(8) Not applicable.
(9) Not applicable.
4
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, NBD BANK, a Michigan banking corporation organized and existing under
the laws of the State of Michigan, has duly caused this statement of eligibility
and qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Detroit, State of Michigan on the 7th day of
June, 1996.
NBD BANK,
(Trustee)
By: /s/ Karen D. O'Donoghue
------------------------
Karen D. O'Donoghue
Vice President
5
<PAGE> 6
Exhibit 1
NBD BANK
DETROIT, MICHIGAN
Charter No. 970
- --------------------------------------------------------------------------------
- ------------------------------------------------
ARTICLES OF INCORPORATION
EFFECTIVE JANUARY 1, 1995
- --------------------------------------------------------------------------------
- ------------------------------------------------
FIRST.
The name of this Bank shall be NBD Bank.
SECOND.
The place where the principal office of this Bank is located is in the City of
Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office anywhere within the City of Detroit without the approval of the
shareholders and shall have the power to establish or change the location of
any branch or branches of this Bank to any other location without the approval
of the shareholders.
THIRD.
The purpose of this Bank is to carry on the business of banking pursuant to the
Michigan Banking Code of 1969, as amended.
FOURTH.
The authorized amount of the capital stock of this Bank shall be 10,000,000
shares of common stock of the par value of $12.50 each. The authorized amount
of the capital stock of this Bank may be increased or decreased from time to
time in accordance with provisions of the laws of the State of Michigan.
FIFTH.
The period for which this Bank is organized is perpetual.
SIXTH.
A Director of the Bank shall not be personally liable to the Bank or its
shareholders for monetary damages for a breach of fiduciary duty as a Director,
except for liability: (a) for any breach of the Director's duty of loyalty to
the Bank or its shareholders; (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 43 of the Michigan Banking Code, as
amended; (d) for any transaction from which the Director derived an improper
personal benefit; or (e) for any act or omission occurring prior to the date
upon which this Article is duly adopted and filed as required
1
<PAGE> 7
by law. If, following approval of this Article by the shareholders, the
Michigan Banking Code is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability
of a Director of the Bank shall be eliminated or limited to the fullest extent
permitted by the Michigan Banking Code, as amended. Any repeal, modification
or adoption of any provisions in these Articles of Incorporation inconsistent
with this Article shall not adversely affect any right or protection of a
Director of the Bank existing at the time of such repeal, modification or
adoption.
SEVENTH.
These Articles of Incorporation may be changed or amended at any time by a vote
of the shareholders owning a majority of the stock of this Bank in any manner
not inconsistent with the provisions of law.
2
<PAGE> 8
Exhibit 2
STATE OF MICHIGAN
DEPARTMENT OF COMMERCE
FINANCIAL INSTITUTIONS BUREAU
[STATE EMBLEM]
OFFICE OF THE COMMISSIONER
I, Patrick M. McQueen, Commissioner, do hereby certify, that
NBD BANK
in the City of Detroit, County of Wayne, State of Michigan, a financial
institution existing and operating under the provisions of the banking code of
1969, having satisfactorily complied with all statutory requirements obtaining
to such matter, is hereby authorized to exercise FULL TRUST POWERS as provided
in sections, 181 through 186 of the banking code of 1969, effective 11:59 p.m.
on December 31, 1994.
[STATE SEAL]
SIGNED AND SEALED this 21st day of
DECEMBER 1994, at Lansing, Michigan.
/s/ Patrick M. McQueen
-----------------------------
Patrick M. McQueen
Commissioner
<PAGE> 9
Exhibit 4
NBD BANK
DETROIT, MICHIGAN
________________________________________________________________________________
BYLAWS
EFFECTIVE JANUARY 1, 1995
________________________________________________________________________________
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETINGS. The regular Annual Meeting of the stockholders of
this Bank for the election of directors and for the transaction of any other
business as may properly come before the meeting shall be held on the third
Monday in May of each year or at such other date as from time to time may be
designated by the Board of Directors. If the election of directors shall not
be held on the day designated for an annual meeting, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a
meeting of the stockholders as soon thereafter as convenient. Nominations for
election to the Board of Directors may be made by the Board of Directors or by
any stockholders entitled to vote for the election of directors.
Section 2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the stockholders may be called for any purpose at
any time by the Board of Directors or by the holders of at least ten per cent
(10%) of the then outstanding shares of stock.
Section 3. PLACE OF MEETINGS. Annual meetings or special meetings of the
stockholders shall be held at the main office of the Bank or at such other place
within or without the State of Michigan as is established by the Board of
Directors.
Section 4. PROXIES. All proxies secured for any annual or special meeting of
stockholders shall be dated and filed by the Secretary with the records of the
meeting.
Section 5. NOTICE OF MEETINGS. Written notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days, before
the date of the meeting either personally or by mail, by or at the direction of
the President, or the Secretary, or the officer or persons calling the meeting
to each stockholder of record entitled to vote at such meeting. If mailed,
such notices shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
records of the Bank with postage thereon prepaid. Such notice may be waived in
writing.
1
<PAGE> 10
Section 6. FIXING THE RECORD DATE. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
annual or special, or entitled to receive payment of any dividend, or in order
to make a determination of stockholders for any other proper purpose, the Board
of Directors shall fix in advance a record date and hour for any such
determination of stockholders, such date in any case to be not more than fifty
(50) days and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 7. STOCKHOLDERS' ACTION WITHOUT A MEETING. Unless otherwise
restricted in the Articles of Incorporation or these Bylaws, any action which
may be taken at the annual or any special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all stockholders
entitled to vote with respect to the subject matter thereof.
ARTICLE II
DIRECTORS
Section 1. SIZE AND VACANCIES. The Board of Directors shall consist of such
number of persons, not less than five nor more than twenty-five, as from time
to time shall be determined by a majority of the votes to which all
stockholders are at the time entitled or by resolution adopted by the
affirmative vote of a majority of the Board of Directors. Any vacancies in the
Board of Directors may be filled by action of a majority of the remaining
Directors between meetings of stockholders. Subject to the limitation as to
the number of Directors, the stockholders may elect not to exceed two less than
the full Board, and the unfilled directorships shall be considered as vacancies
and may be filled thereafter by the Board of Directors.
Section 2. POWERS. The Board of Directors, a majority of whom shall be a
quorum to transact business, shall have power to manage and administer the
business and affairs of the Bank and to prescribe Bylaws for the regulation of
the business of the Bank and the conduct of its affairs not inconsistent with
law, the Articles of Incorporation and these Bylaws. Except as expressly
limited by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Board of Directors.
Section 3. OFFICERS AND EMPLOYEES. The Board of Directors shall have power to
elect or appoint such officers and employees as may be required to transact the
business of the Bank, to define their duties, to require bonds from them and to
fix the penalty thereof, and to continue them in office or dismiss them.
Section 4. MEETINGS. The regular meetings of the Board of Directors shall be
held on such date and at such time each month, within or without the State of
Michigan as shall from time to time be determined by the Board of Directors by
resolution, except that in the month in which the regular annual meeting of the
stockholders is held, the regular meeting of the Board of Directors shall be
held following and on the same day as the regular meeting of the stockholders.
When
2
<PAGE> 11
any regular meeting of the Board of Directors falls upon a holiday, the meeting
shall be held on such other day as the Board of Directors may previously
designate. Special meetings of the Board of Directors may be called at any
time by the Secretary or by any officer of higher rank than Vice President, or
any three Directors. Notice of each special meeting shall be given personally
or by duly mailing, telephoning, or telegraphing the same, at least twenty-four
hours before the meeting. Any or all Directors may waive notice of any meeting
either before or after the meeting.
Section 5. PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors or any committee designated by the Board may participate in
a meeting of the Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 6. DIRECTORS' ACTION WITHOUT A MEETING. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if a written consent thereto
is signed by all members of the Board or of such committee as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. EXECUTIVE COMMITTEE. There shall be a committee composed of not
less than four (4) members to be known as the Executive Committee which shall
consist of all the officer-directors of the Bank and two (2) other directors
appointed as shall be provided by the Board of Directors. Provision shall be
made by the Board of Directors for the appointment of alternates to act for
members in the event of their absence or disability.
1.1 PRESIDING OFFICER. The Chairman of the Board shall act as presiding
officer at any meeting of the Executive Committee. In the event of
the absence or disability of the Chairman of the Board, the President
shall act as presiding officer. In the event of the absence or
disability of the Chairman of the Board and President, another
officer-director, if present, shall act as presiding officer. If no
officer-director member is present, an Executive Vice President of the
Bank may serve as the presiding officer or the other members present
at the meeting shall elect one of their members as presiding officer.
1.2 QUORUM. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall
be non-officer directors, shall constitute a quorum for the
transaction of business at any meeting of the Executive Committee.
3
<PAGE> 12
1.3 DUTIES. The Executive Committee shall function from day to day or such
other short intervals as shall be found requisite and expedient in the
carrying on of the business and affairs of the Bank, and between
meetings of the Board of Directors, said Committee, within the scope of
the jurisdiction and functions assigned by the Board of Directors to
such Committee, shall have and may exercise, so far as may be permitted
by law, all power and authority of the Board of Directors (including
the right to authorize the seal of the Bank to be affixed to all
instruments on which the same may be required or appropriate) and shall
have power, but not by way of limitation of its general powers, to
discount and purchase bills, notes, and other evidences of debt, and to
buy and sell bills of exchange. A record of the meetings of the
Committee shall be kept, which shall be accessible to inspection by the
Directors at all times, and the Committee shall, at each regular
meeting of the Board of Directors and at such other times as the Board
of Directors may request, submit in writing a full report of its
actions. The Board of Directors shall approve or disapprove the report
of the Executive Committee, such action to be recorded in the minutes
of the meeting; provided, however, that no rights of third parties
shall be affected by any action of the Board of Directors, if such
rights have attached by virtue of action of the Executive Committee
within the scope of the jurisdiction and functions assigned by the
Board of Directors to said Committee.
Section 2. AUDIT COMMITTEE. There shall be appointed annually by the Board of
Directors an Audit Committee composed of not less than three (3) Directors none
of whom shall be officers of the Bank.
2.1 DUTIES. The Audit Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a
suitable examination of the financial records and operations
of the Bank through a program of continuous internal audits.
The Committee may employ independent certified public
accounting firms of recognized standing to make such
additional examinations and audits as it may deem advisable.
The examinations caused to be made by the Committee shall meet
any examination requirements prescribed from time to time by
the Michigan Financial Institutions Bureau or other regulatory
authorities having jurisdiction and may be made in conjunction
with examinations of the Michigan Financial Institutions
Bureau.
(ii) Report to the Board of Directors at least once in each
calendar year the results of the examinations made and such
conclusions and recommendations as the Committee deems
appropriate.
Section 3. OTHER COMMITTEES. The Board of Directors may create and appoint
such other committees as it may, at any time or from time to time, find
necessary or desirable to facilitate and expedite the management and
administration of the affairs of the Bank. The Board of Directors shall have
power to specify the number of members of any such other committee, to
designate the powers and duties of any such other committee, and to provide for
the tenure in office of its members, its method of organization, and its
procedure for the transaction of business.
4
<PAGE> 13
ARTICLE IV
OFFICERS
Section 1. APPOINTMENT AND TITLES. The officers of this Bank shall include a
Chairman of the Board and a President and may include one or more Vice Chairman
of the Board, each of whom shall be a member of the Board of Directors, and
shall further include one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, and such other officers as may be from time to time
required for the prompt and orderly transaction of its business, to be elected
by the Board of Directors. The same person may hold any two or more offices,
and in any such case, these Bylaws shall be construed and understood
accordingly; provided that the same person may not hold the offices of Chairman
of the Board and Secretary or President and Secretary. The duties and
authorities of the officers of the Bank, other than those mentioned in these
Bylaws, shall be those usually pertaining to their respective offices, or as
may be designated by the Chairman of the Board, subject to the supervision and
direction of the Board of Directors.
Section 2. TERM OF OFFICE OF OFFICER-DIRECTORS. The Chairman of the Board,
the President and any Vice Chairman of the Board shall hold office for the
current year for which the Board of Directors of which they shall be members
was elected, unless they shall resign, become disqualified, or be removed; and
any vacancy occurring in any of such offices may be filled by the remaining
members of the Board of Directors.
Section 3. CHAIRMAN OF THE BOARD AND PRESIDENT. The Chairman of the Board
shall be the chief executive officer of the Bank, shall preside at meetings of
stockholders and directors, shall have general supervision and direction of the
business of the Bank, and perform such other duties as may be designated by the
Board of Directors. The President shall perform such duties as may be
designated by the Board of Directors and, in the event of the absence or
disability of the Chairman of the Board, shall have his powers and duties. The
Vice Chairman of the Board shall perform such duties as may be designated by
the Board of Directors.
Section 4. OFFICERS. All other officers shall be elected to hold their
respective offices at the pleasure of the Board of Directors of the Bank, and
shall have such duties, other than those mentioned herein, as shall be
prescribed by the Board of Directors.
Section 5. SECRETARY. The Secretary or Assistant Secretary or other officers
designated by the Board of Directors shall be responsible for stock books and
records, and other valuables of the Bank, and shall keep accurate minutes of
all meetings. The Secretary shall attend to the giving of all notices required
by these Bylaws to be given. He shall be custodian of the corporate seal,
records, documents and papers of the Bank. He shall provide for the keeping of
proper records of all transactions of the Bank. The Secretary, or Assistant
Secretary in his absence, shall have the power to sign indemnity agreements and
appoint agents by executing powers of attorney or such other similar documents
deemed necessary in the ordinary course of transacting the Bank's business. He
shall serve as Cashier, and he or his Deputy Cashiers shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the office of the Cashier, or imposed by these Bylaws. He shall
also perform such other duties as may be assigned to him, from time to time, by
the Board of Directors.
5
<PAGE> 14
Section 6. OFFICERS, EMPLOYEES AND AGENTS. All other officers, employees and
agents of this Bank shall be responsible for all such sums of money and
property of every kind as may be entrusted to their care or placed in their
hands by the Board of Directors, or otherwise come into their hands as
officers, employees or agents; and shall qualify under the bankers blanket bond
covering the bank officers and employees, approved as to type and amount from
year to year by the Board of Directors, conditioned for the honest and faithful
discharge of their duties as such officers, employees or agents, and that they
will faithfully and honestly apply and account for all sums of money and other
property of this Bank that may come into their hands as such officers,
employees or agents and pay over and deliver the same to the order of the Board
of Directors, or to any other person or persons authorized by the Board of
Directors to receive the same.
ARTICLE V
SEAL
The Board may adopt a seal of the Bank in any form including a raised
impression or a stamp bearing the name of the Bank and the city and state of
its principal place of business. The Secretary shall be the official custodian
of the seal and shall be responsible for the safekeeping and proper use
thereof. The seal shall not be used or affixed to any paper or document
whatsoever except by the Secretary or any Assistant Secretary, or such other
officers or employees of the Bank as may be authorized by the Secretary or any
Assistant Secretary to affix the seal.
ARTICLE VI
EXECUTION OF INSTRUMENTS
Section 1. CONVEYANCE OF REAL ESTATE. All transfers and conveyances of real
estate shall be made by the Bank, under seal, and shall be signed by the
President or any Vice President or any other officer, employee or agent of the
Bank as may be designated by the Secretary, and shall be attested by the
Secretary or any Assistant Secretary, or such other officer or employee of this
Bank as may be authorized by the Secretary to affix the seal.
Section 2. CONTRACTS. All contracts, checks, drafts, etc., shall be signed by
the Secretary, or any officer of the rank of Vice President or higher rank, or
any other officer or employee designated by the Secretary.
Section 3. ABSENCE OF RESOLUTION. No resolution of the Board of Directors
shall be necessary in order to authorize the execution, acknowledgement or
verification of any document by any officer who is authorized under these
Bylaws to do so, and he or she shall have full authority to act as if he or she
were duly authorized by resolution of the Board of Directors in each particular
case.
6
<PAGE> 15
ARTICLE VII
BANKING HOURS
The Bank shall be open for business upon such hours of each day of the
year as the Chief Executive Officer or his delegate shall from time to time
direct and the Chief Executive Officer or his delegate may, in his discretion,
prescribe different banking hours for different classes of business and
different banking hours for one or more branch offices, than prescribed for the
principal banking office.
ARTICLE VIII
MINUTE BOOK
The organization papers of this Bank, the returns of the judges of the
elections, the proceedings of all regular and special meetings of the Board of
Directors and of the stockholders, the Bylaws and any amendments thereto, and
reports of the committees of the Board of Directors shall be recorded in the
minute book and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Secretary.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. TRANSFERS. The stock of this Bank shall be assignable and
transferable only on the books of this Bank, subject to the restrictions and
provisions of the law; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
Section 2. RECORD DATE. The stock transfer books of the Bank shall not be
closed for the determination of stockholders entitled to dividends, but any
dividend can be made payable to stockholders of record on the date such
dividend is declared, or any subsequent date. The Bank shall be fully
protected in giving notices of meetings, paying dividends and doing such other
things as require a knowledge of the names of the stockholders of the Bank, in
relying upon the names of the stockholders as they appear upon the stock books
of the Bank.
Section 3. FORM AND ISSUANCE. Certificates of stock, bearing the manual or
facsimile signature of the Chairman of the Board, President or any Vice
President, and the Secretary, or the manual or facsimile signature of any two
of such other employees of the Bank as may be designated for such purpose from
time to time by resolution of the Board of Directors, and bearing the impressed
or facsimile seal of the Bank, may be issued to stockholders. The death,
resignation, discharge or incapacity of any person whose manual or facsimile
signature appears on any certificate, shall not affect the validity of such
certificate of stock, whether such certificate has theretofore or is thereafter
issued. All certificates of stock shall state upon the face thereof that the
stock is transferable only upon the books of the Bank; and when stock is
transferred, the certificates therefore shall be returned to the Bank,
canceled, preserved and new certificates issued.
7
<PAGE> 16
ARTICLE X
PROXIES AND CONSENTS
Proxies to vote and written consent with respect to shares of stock of
other corporations owned by or standing in the name of the Bank may be executed
and delivered from time to time on behalf of the Bank by two officers, one of
whom shall be the Chairman, President, Executive Vice President, Senior Vice
President or a Vice President and the other of whom shall be the Secretary or
an Assistant Secretary of the Bank; or by any other person or persons duly
authorized by the Board of Directors.
ARTICLE XI
TRUST DIVISION
Section 1. EXERCISE OF FIDUCIARY POWERS. All fiduciary powers of the Bank
shall be exercised through the Trust Division under the supervision of the
Trust Committee, subject to the Michigan Banking Code and subject to such
regulations as the Michigan Financial Institutions Bureau shall from time to
time establish. All books and records relating to fiduciary activities shall
be kept separate and distinct from the other books and records of the Bank.
Section 2. OFFICER IN CHARGE. The Trust Division shall be placed under the
management and immediate supervision of an officer in charge appointed by the
Board of Directors. The duties of such officer shall be to cause the policies
and instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. OTHER OFFICERS. Any other officer specifically appointed for the
performance of fiduciary activities shall exercise such powers and perform such
duties as are prescribed by these Bylaws, or as may be assigned to them by the
Board of Directors, the chief executive officer or the officer in charge of
fiduciary activities.
Section 4. SIGNATURE AND AUTHENTICATION OF INSTRUMENTS. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of the Bank by any Trust Officer or officer of equal or higher rank
specifically elected or appointed for the performance of fiduciary duties or
the Secretary or any officer of the rank of Vice President or higher rank or by
any other person appointed for that purpose by the Board of Directors.
8
<PAGE> 17
Section 5. CUSTODY OF INVESTMENTS. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Michigan Financial
Institutions Bureau for collective investment, or adequately identified as the
property of the relevant account.
Section 6. TRUST COMMITTEE. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall have general
supervision of and shall determine the policies relating to the administration
of fiduciary relationships. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors. Any three (3)
persons, each of whom is a member of the Trust Committee, of whom not less than
two (2) shall be nonofficer directors, shall constitute a quorum for the
transaction of business at any meeting of the Trust Committee.
ARTICLE XII
QUORUM
Except as otherwise provided by statute or in the Articles of Incorporation
or these Bylaws, a majority of all the stockholders or Directors, as the case
may be, shall be required to constitute a quorum to do business. Should there
be no quorum at any regular or special meeting of stockholders or Directors,
the stockholders or Directors present may adjourn from day to day until a
quorum is in attendance.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
The Bank shall indemnify and reimburse any director, officer, employee, or
agent to the fullest extent permitted by the laws of the State of Michigan, as
amended from time to time.
9
<PAGE> 18
ARTICLE XIV
AMENDMENTS TO BYLAWS
These Bylaws may be repealed, altered, or amended, in whole or in part, by
the vote of a majority of the Directors, at any regular or special meeting of
the Board of Directors.
==============================================================================
====================================================
CERTIFICATION
I, _________________________________, ________________________________ of NBD
Bank of Detroit, Michigan, certify that the foregoing is a true and exact copy
of the Articles of Incorporation and Bylaws of NBD Bank effective January 1,
1995.
IN WITNESS WHEREOF, I have executed this certification and caused the corporate
seal of the Bank to be affixed on _______________________, 19___ .
____________________________
10
<PAGE> 19
Exhibit 7
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK
in the State of Michigan, at the close of business on December 31, 1995 pub-
lished in response to call made by Comptroller of the Currency, under title 12,
United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency
and coin ................................................................... 1,551,031
Interest-bearing balances .................................................. 628,810
Securities:
Held-to-maturity securities ................................................ 0
Available-for-sale securities .............................................. 5,018,302
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds sold ..................................................... 595,150
Securities purchased under agreements to resell ........................ 146,401
Loans and lease financing receivables:
Loans and leases, net of unearned income .................... 20,460,785
LESS: Allowance for loan and lease losses ................... 267,382
Loans and leases, net of unearned income and
allowance .................................................................. 20,193,403
Assets held in trading accounts ................................................ 154,747
Premises and fixed assets (including
capitalized leases) ........................................................ 348,959
Other real estate owned ........................................................ 16,176
Investments in unconsolidated subsidiaries and
associated companies ....................................................... --
Customers' liability to this bank on acceptances
outstanding ................................................................ 164,133
Intangible assets .............................................................. 38,024
Other assets ................................................................... 606,503
----------
Total assets ................................................................... 29,461,639
==========
LIABILITIES
Deposits:
In domestic offices ........................................................ 16,450,184
Noninterest-bearing ..................................... 4,799,681
Interest-bearing ........................................ 11,650,503
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................................... 2,910,868
Noninterest-bearing ..................................... 67,313
Interest-bearing ........................................ 2,843,555
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds purchased ................................................ 1,958,326
Securities sold under agreements to repurchase ......................... 243,869
Demand notes issued to the U.S. Treasury ....................................... 162,376
Trading liabilities ............................................................ 75,745
Other borrowed money:
With original maturity of one year or less ............................. 2,377,209
With original maturity of more than one year ........................... 1,564,618
Mortgage indebtedness and obligations
under capitalized leases ................................................... 14,262
Bank's liability on acceptances executed and
outstanding ................................................................ 164,133
Notes and debentures subordinated to
deposits ................................................................... 700,000
Other liabilities .............................................................. 566,318
----------
Total liabilities .............................................................. 27,187,908
----------
EQUITY CAPITAL
Common stock ................................................................... 111,858
Surplus ........................................................................ 631,981
Undivided profits and capital reserves ......................................... 1,448,664
Net unrealized holding gains (losses) on available-for-sale securities ......... 72,912
Cumulative foreign currency translation
adjustments ................................................................ 8,316
----------
Total equity capital ........................................................... 2,273,731
----------
Total liabilities and equity capital ........................................... 29,461,639
==========
</TABLE>
I, Jason N. Hansen, Vice President of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
JASON N. HANSEN
January 25, 1996
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
THOMAS H. JEFFS II
JOHN E. LOBBIA
ALFRED R. GLANCY III
Directors
